plaintiff's declaration, was the negro slave of Major Taliaferro, who
belonged to the army of the United States. In that year, Major
Taliaferro took Harriet to Fort Snelling, a military post situated as
hereinbefore stated, and kept her there as a slave until the year
1836, and then sold and delivered her as a slave, at Fort Snelling,
unto Dr. Emerson, who held her in slavery, at that place, until the
year 1838.
In the year 1836, the plaintiff and Harriet were married at Fort
Snelling, with the consent of Dr. Emerson, who claimed to be their
master and owner. Eliza and Lizzie, named in the third count of the
plaintiff's declaration, are the fruit of that marriage. Eliza is
about fourteen years old, and was born on board the steamboat Gipsey,
north of the north line of the State of Missouri, and upon the river
Mississippi. Lizzie is about seven years old, and was born in the
State of Missouri, at the military post called Jefferson Barracks.
In the year 1838, Dr. Emerson removed the plaintiff and said Harriet
and their daughter Eliza from Fort Snelling to the State of Missouri,
where they have ever since resided.
Before the commencement of the suit, Dr. Emerson sold and conveyed the
plaintiff, Harriet, Eliza, and Lizzie, to the defendant, as slaves,
and he has ever since claimed to hold them as slaves.
At the times mentioned in the plaintiff's declaration, the defendant,
claiming to be the owner, laid his hands upon said plaintiff, Harriet,
Eliza, and Lizzie, and imprisoned them; doing in this respect,
however, no more than he might lawfully do, if they were of right his
slaves at such times.
In the first place, the plea to the jurisdiction is not before us, on
this writ of error. A demurrer to the plea was sustained, which ruled
the plea bad, and the defendant, on leave, pleaded over.
The decision on the demurrer was in favor of the plaintiff; and as the
plaintiff prosecutes this writ of error, he does not complain of the
decision on the demurrer. The defendant might have complained of this
decision, as against him, and have prosecuted a writ of error, to
reverse it. But as the case, under the instruction of the court to the
jury, was decided in his favor, of course he had no ground of
complaint.
But it is said, if the court, on looking at the record, shall clearly
perceive that the Circuit Court had no jurisdiction, it is a ground
for the dismissal of the case. This may be characterized as rather a
sharp practice, and one which seldom, if ever, occurs. No case was
cited in the argument as authority, and not a single case precisely in
point is recollected in our reports. The pleadings do not show a want
of jurisdiction. This want of jurisdiction can only be ascertained by
a judgment on the demurrer to the special plea. No such case, it is
believed, can be cited. But if this rule of practice is to be applied
in this case, and the plaintiff in error is required to answer and
maintain as well the points ruled in his favor, as to show the error
of those ruled against him, he has more than an ordinary duty to
perform. Under such circumstances, the want of jurisdiction in the
Circuit Court must be so clear as not to admit of doubt. Now, the plea
which raises the question of jurisdiction, in my judgment, is
radically defective. The gravamen of the plea is this: "That the
plaintiff is a negro of African descent, his ancestors being of pure
African blood, and were brought into this country, and sold as negro
slaves."
There is no averment in this plea which shows or conduces to show an
inability in the plaintiff to sue in the Circuit Court. It does not
allege that the plaintiff had his domicil in any other State, nor that
he is not a free man in Missouri. He is averred to have had a negro
ancestry, but this does not show that he is not a citizen of Missouri,
within the meaning of the act of Congress authorizing him to sue in
the Circuit Court. It has never been held necessary, to constitute a
citizen within the act, that he should have the qualifications of an
elector. Females and minors may sue in the Federal courts, and so may
any individual who has a permanent domicil in the State under whose
laws his rights are protected, and to which he owes allegiance.
Being born under our Constitution and laws, no naturalization is
required, as one of foreign birth, to make him a citizen. The most
general and appropriate definition of the term citizen is "a freeman."
Being a freeman, and having his domicil in a State different from that
of the defendant, he is a citizen within the act of Congress, and the
courts of the Union are open to him.
It has often been held, that the jurisdiction, as regards parties, can
only be exercised between citizens of different States, and that a
mere residence is not sufficient; but this has been said to
distinguish a temporary from a permanent residence.
To constitute a good plea to the jurisdiction, it must negative those
qualities and rights which enable an individual to sue in the Federal
courts. This has not been done; and on this ground the plea was
defective, and the demurrer was properly sustained. No implication can
aid a plea in abatement or in bar; it must be complete in itself; the
facts stated, if true, must abate or bar the right of the plaintiff to
sue. This is not the character of the above plea. The facts stated, if
admitted, are not inconsistent with other facts, which may be
presumed, and which bring the plaintiff within the act of Congress.
The pleader has not the boldness to allege that this plaintiff is a
slave, as that would assume against him the matter in controversy, and
embrace the entire merits of the case in a plea to the jurisdiction.
But beyond the facts set out in the plea, the court, to sustain it,
must assume the plaintiff to be a slave, which is decisive on the
merits. This is a short and an effectual mode of deciding the cause;
but I am yet to learn that it is sanctioned by any known rule of
pleading.
The defendant's counsel complain, that if the court take jurisdiction
on the ground that the plaintiff is free, the assumption is against
the right of the master. This argument is easily answered. In the
first place, the plea does not show him to be a slave; it does not
follow that a man is not free whose ancestors were slaves. The reports
of the Supreme Court of Missouri show that this assumption has many
exceptions; and there is no averment in the plea that the plaintiff is
not within them.
By all the rules of pleading, this is a fatal defect in the plea. If
there be doubt, what rule of construction has been established in the
slave States? In Jacob _v._ Sharp, (Meigs's Rep., Tennessee, 114,) the
court held, when there was doubt as to the construction of a will
which emancipated a slave, "it must be construed to be subordinate to
the higher and more important right of freedom."
No injustice can result to the master, from an exercise of
jurisdiction in this cause. Such a decision does not in any degree
affect the merits of the case; it only enables the plaintiff to assert
his claims to freedom before this tribunal. If the jurisdiction be
ruled against him, on the ground that he is a slave, it is decisive of
his fate.
It has been argued that, if a colored person be made a citizen of a
State, he cannot sue in the Federal court. The Constitution declares
that Federal jurisdiction "may be exercised between citizens of
different States," and the same is provided in the act of 1789. The
above argument is properly met by saying that the Constitution was
intended to be a practical instrument; and where its language is too
plain to be misunderstood, the argument ends.
In Chiræ _v._ Chiræ, (2 Wheat., 261; 4 Curtis, 99,) this court says:
"That the power of naturalization is exclusively in Congress does not
seem to be, and certainly ought not to be, controverted." No person
can legally be made a citizen of a State, and consequently a citizen
of the United States, of foreign birth, unless he be naturalized under
the acts of Congress. Congress has power "to establish a uniform rule
of naturalization."
It is a power which belongs exclusively to Congress, as intimately
connected with our Federal relations. A State may authorize foreigners
to hold real estate within its jurisdiction, but it has no power to
naturalize foreigners, and give them the rights of citizens. Such a
right is opposed to the acts of Congress on the subject of
naturalization, and subversive of the Federal powers. I regret that
any countenance should be given from this bench to a practice like
this in some of the States, which has no warrant in the Constitution.
In the argument, it was said that a colored citizen would not be an
agreeable member of society. This is more a matter of taste than of
law. Several of the States have admitted persons of color to the right
of suffrage, and in this view have recognised them as citizens; and
this has been done in the slave as well as the free States. On the
question of citizenship, it must be admitted that we have not been
very fastidious. Under the late treaty with Mexico, we have made
citizens of all grades, combinations, and colors. The same was done in
the admission of Louisiana and Florida. No one ever doubted, and no
court ever held, that the people of these Territories did not become
citizens under the treaty. They have exercised all the rights of
citizens, without being naturalized under the acts of Congress.
There are several important principles involved in this case, which
have been argued, and which may be considered under the following
heads:
1. The locality of slavery, as settled by this court and the courts of
the States.
2. The relation which the Federal Government bears to slavery in the
States.
3. The power of Congress to establish Territorial Governments, and to
prohibit the introduction of slavery therein.
4. The effect of taking slaves into a new State or Territory, and so
holding them, where slavery is prohibited.
5. Whether the return of a slave under the control of his master,
after being entitled to his freedom, reduces him to his former
condition.
6. Are the decisions of the Supreme Court of Missouri, on the
questions before us, binding on this court, within the rule adopted.
In the course of my judicial duties, I have had occasion to consider
and decide several of the above points.
1. As to the locality of slavery. The civil law throughout the
Continent of Europe, it is believed, without an exception, is, that
slavery can exist only within the territory where it is established;
and that, if a slave escapes, or is carried beyond such territory, his
master cannot reclaim him, unless by virtue of some express
stipulation. (Grotius, lib. 2, chap. 15, 5, 1; lib. 10, chap. 10, 2,
1; Wicqueposts Ambassador, lib. 1, p. 418; 4 Martin, 385; Case of the
Creole in the House of Lords, 1842; 1 Phillimore on International Law,
316, 335.)
There is no nation in Europe which considers itself bound to return to
his master a fugitive slave, under the civil law or the law of
nations. On the contrary, the slave is held to be free where there is
no treaty obligation, or compact in some other form, to return him to
his master. The Roman law did not allow freedom to be sold. An
ambassador or any other public functionary could not take a slave to
France, Spain, or any other country of Europe, without emancipating
him. A number of slaves escaped from a Florida plantation, and were
received on board of ship by Admiral Cochrane; by the King's Bench,
they were held to be free. (2 Barn. and Cres., 440.)
In the great and leading case of Prigg _v._ The State of Pennsylvania,
(16 Peters, 594; 14 Curtis, 421,) this court say that, by the general
law of nations, no nation is bound to recognise the state of slavery,
as found within its territorial dominions, where it is in opposition
to its own policy and institutions, in favor of the subjects of other
nations where slavery is organized. If it does it, it is as a matter
of comity, and not as a matter of international right. The state of
slavery is deemed to be a mere municipal regulation, founded upon and
limited to the range of the territorial laws. This was fully
recognised in Somersett's case, (Lafft's Rep., 1; 20 Howell's State
Trials, 79,) which was decided before the American Revolution.
There was some contrariety of opinion among the judges on certain
points ruled in Prigg's case, but there was none in regard to the
great principle, that slavery is limited to the range of the laws
under which it is sanctioned.
No case in England appears to have been more thoroughly examined than
that of Somersett. The judgment pronounced by Lord Mansfield was the
judgment of the Court of King's Bench. The cause was argued at great
length, and with great ability, by Hargrave and others, who stood
among the most eminent counsel in England. It was held under
advisement from term to term, and a due sense of its importance was
felt and expressed by the Bench.
In giving the opinion of the court, Lord Mansfield said:
"The state of slavery is of such a nature that it is incapable of
being introduced on any reasons, moral or political, but only by
positive law, which preserves its force long after the reasons,
occasion, and time itself, from whence it was created, is erased from
the memory; it is of a nature that nothing can be suffered to support
it but positive law."
He referred to the contrary opinion of Lord Hardwicke, in October,
1749, as Chancellor: "That he and Lord Talbot, when Attorney and
Solicitor General, were of opinion that no such claim, as here
presented, for freedom, was valid."
The weight of this decision is sought to be impaired, from the terms
in which it was described by the exuberant imagination of Curran. The
words of Lord Mansfield, in giving the opinion of the court, were such
as were fit to be used by a great judge, in a most important case. It
is a sufficient answer to all objections to that judgment, that it was
pronounced before the Revolution, and that it was considered by this
court as the highest authority. For near a century, the decision in
Somersett's case has remained the law of England. The case of the
slave Grace, decided by Lord Stowell in 1827, does not, as has been
supposed, overrule the judgment of Lord Mansfield. Lord Stowell held
that, during the residence of the slave in England, "No dominion,
authority, or coercion, can be exercised over him." Under another
head, I shall have occasion to examine the opinion in the case of
Grace.
To the position, that slavery can only exist except under the
authority of law, it is objected, that in few if in any instances has
it been established by statutory enactment. This is no answer to the
doctrine laid down by the court. Almost all the principles of the
common law had their foundation in usage. Slavery was introduced into
the colonies of this country by Great Britain at an early period of
their history, and it was protected and cherished, until it became
incorporated into the colonial policy. It is immaterial whether a
system of slavery was introduced by express law, or otherwise, if it
have the authority of law. There is no slave State where the
institution is not recognised and protected by statutory enactments
and judicial decisions. Slaves are made property by the laws of the
slave States, and as such are liable to the claims of creditors; they
descend to heirs, are taxed, and in the South they are a subject of
commerce.
In the case of Rankin _v._ Lydia, (2 A.K. Marshall's Rep.,) Judge
Mills, speaking for the Court of Appeals of Kentucky, says: "In
deciding the question, (of slavery,) we disclaim the influence of the
general principles of liberty, which we all admire, and conceive it
ought to be decided by the law as it is, and not as it ought to be.
Slavery is sanctioned by the laws of this State, and the right to hold
slaves under our municipal regulations is unquestionable. But we view
this as a right existing by positive law of a municipal character,
without foundation in the law of nature, or the unwritten and common
law."
I will now consider the relation which the Federal Government bears to
slavery in the States:
Slavery is emphatically a State institution. In the ninth section of
the first article of the Constitution, it is provided "that the
migration or importation of such persons as any of the States now
existing shall think proper to admit, shall not be prohibited by the
Congress prior to the year 1808, but a tax or duty may be imposed on
such importation, not exceeding ten dollars for each person."
In the Convention, it was proposed by a committee of eleven to limit
the importation of slaves to the year 1800, when Mr. Pinckney moved to
extend the time to the year 1808. This motion was carried--New
Hampshire, Massachusetts, Connecticut, Maryland, North Carolina, South
Carolina, and Georgia, voting in the affirmative; and New Jersey,
Pennsylvania, and Virginia, in the negative. In opposition to the
motion, Mr. Madison said: "Twenty years will produce all the mischief
that can be apprehended from the liberty to import slaves; so long a
term will be more dishonorable to the American character than to say
nothing about it in the Constitution." (Madison Papers.)
The provision in regard to the slave trade shows clearly that Congress
considered slavery a State institution, to be continued and regulated
by its individual sovereignty; and to conciliate that interest, the
slave trade was continued twenty years, not as a general measure, but
for the "benefit of such States as shall think proper to encourage
it."
In the case of Groves _v._ Slaughter, (15 Peters, 449; 14 Curtis,
137,) Messrs. Clay and Webster contended that, under the commercial
power, Congress had a right to regulate the slave trade among the
several States; but the court held that Congress had no power to
interfere with slavery as it exists in the States, or to regulate what
is called the slave trade among them. If this trade were subject to
the commercial power, it would follow that Congress could abolish or
establish slavery in every State of the Union.
The only connection which the Federal Government holds with slaves in
a State, arises from that provision of the Constitution which declares
that "No person held to service or labor in one State, under the laws
thereof, escaping into another, shall, in consequence of any law or
regulation therein, be discharged from such service or labor, but
shall be delivered up, on claim of the party to whom such service or
labor may be due."
This being a fundamental law of the Federal Government, it rests
mainly for its execution, as has been held, on the judicial power of
the Union; and so far as the rendition of fugitives from labor has
become a subject of judicial action, the Federal obligation has been
faithfully discharged.
In the formation of the Federal Constitution, care was taken to confer
no power on the Federal Government to interfere with this institution
in the States. In the provision respecting the slave trade, in fixing
the ratio of representation, and providing for the reclamation of
fugitives from labor, slaves were referred to as persons, and in no
other respect are they considered in the Constitution.
We need not refer to the mercenary spirit which introduced the
infamous traffic in slaves, to show the degradation of negro slavery
in our country. This system was imposed upon our colonial settlements
by the mother country, and it is due to truth to say that the
commercial colonies and States were chiefly engaged in the traffic.
But we know as a historical fact, that James Madison, that great and
good man, a leading member in the Federal Convention, was solicitous
to guard the language of that instrument so as not to convey the idea
that there could be property in man.
I prefer the lights of Madison, Hamilton, and Jay, as a means of
construing the Constitution in all its bearings, rather than to look
behind that period, into a traffic which is now declared to be piracy,
and punished with death by Christian nations. I do not like to draw
the sources of our domestic relations from so dark a ground. Our
independence was a great epoch in the history of freedom; and while I
admit the Government was not made especially for the colored race, yet
many of them were citizens of the New England States, and exercised
the rights of suffrage when the Constitution was adopted, and it was
not doubted by any intelligent person that its tendencies would
greatly ameliorate their condition.
Many of the States, on the adoption of the Constitution, or shortly
afterward, took measures to abolish slavery within their respective
jurisdictions; and it is a well-known fact that a belief was cherished
by the leading men, South as well as North, that the institution of
slavery would gradually decline, until it would become extinct. The
increased value of slave labor, in the culture of cotton and sugar,
prevented the realization of this expectation. Like all other
communities and States, the South were influenced by what they
considered to be their own interests.
But if we are to turn our attention to the dark ages of the world, why
confine our view to colored slavery? On the same principles, white men
were made slaves. All slavery has its origin in power, and is against
right.
The power of Congress to establish Territorial Governments, and to
prohibit the introduction of slavery therein, is the next point to be
considered.
After the cession of western territory by Virginia and other States,
to the United States, the public attention was directed to the best
mode of disposing of it for the general benefit. While in attendance
on the Federal Convention, Mr. Madison, in a letter to Edmund
Randolph, dated the 22d April, 1787, says: "Congress are deliberating
on the plan most eligible for disposing of the western territory not
yet surveyed. Some alteration will probably be made in the ordinance
on that subject." And in the same letter he says: "The inhabitants of
the Illinois complain of the land jobbers, &c., who are purchasing
titles among them. Those of St. Vincent's complain of the defective
criminal and civil justice among them, as well as of military
protection." And on the next day he writes to Mr. Jefferson: "The
government of the settlements on the Illinois and Wabash is a subject
very perplexing in itself, and rendered more so by our ignorance of
the many circumstances on which a right judgment depends. The
inhabitants at those places claim protection against the savages, and
some provision for both civil and criminal justice."
In May, 1787, Mr. Edmund Randolph submitted to the Federal Convention
certain propositions, as the basis of a Federal Government, among
which was the following:
"_Resolved_, That provision ought to be made for the admission of
States lawfully arising within the limits of the United States,
whether from a voluntary junction of government and territory or
otherwise, with the consent of a number of voices in the National
Legislature less than the whole."
Afterward, Mr. Madison submitted to the Convention, in order to be
referred to the committee of detail, the following powers, as proper
to be added to those of general legislation:
"To dispose of the unappropriated lands of the United States. To
institute temporary Governments for new States arising therein. To
regulate affairs with the Indians, as well within as without the
limits of the United States."
Other propositions were made in reference to the same subjects, which
it would be tedious to enumerate. Mr. Gouverneur Morris proposed the
following:
"The Legislature shall have power to dispose of and make all needful
rules and regulations respecting the territory or other property
belonging to the United States; and nothing in this Constitution
contained shall be so construed as to prejudice any claims either of
the United States or of any particular State."
This was adopted as a part of the Constitution, with two verbal
alterations--Congress was substituted for Legislature, and the word
_either_ was stricken out.