same month and year of the removal of the plaintiff to Fort Snelling,
this part of the territory ceded by France, where Fort Snelling is,
together with so much of the territory of the United States east of
the Mississippi as now constitutes the State of Wisconsin, was brought
under a Territorial Government, under the name of the Territory of
Wisconsin. By the eighteenth section of this act, it was enacted,
"That the inhabitants of this Territory shall be entitled to and enjoy
all and singular the rights, privileges, and advantages, granted and
secured to the people of the Territory of the United States northwest
of the river Ohio, by the articles of compact contained in the
ordinance for the government of said Territory, passed on the 13th day
of July, 1787; and shall be subject to all the restrictions and
prohibitions in said articles of compact imposed upon the people of
the said Territory." The sixth article of that compact is, "there
shall be neither slavery nor involuntary servitude in the said
Territory, otherwise than in the punishment of crimes, whereof the
party shall have been duly convicted. _Provided, always_, that any
person escaping into the same, from whom labor or service is lawfully
claimed in any one of the original States, such fugitive may be
lawfully reclaimed, and conveyed to the person claiming his or her
labor or service, as aforesaid." By other provisions of this act
establishing the Territory of Wisconsin, the laws of the United
States, and the then existing laws of the State of Michigan, are
extended over the Territory; the latter being subject to alteration
and repeal by the legislative power of the Territory created by the
act.
Fort Snelling was within the Territory of Wisconsin, and these laws
were extended over it. The Indian title to that site for a military
post had been acquired from the Sioux nation as early as September 23,
1805, (Am. State Papers, Indian Affairs, vol. 1, p. 744,) and until
the erection of the Territorial Government, the persons at that post
were governed by the rules and articles of war, and such laws of the
United States, including the eighth section of the act of March 6,
1820, prohibiting slavery, as were applicable to their condition; but
after the erection of the Territory, and the extension of the laws of
the United States and the laws of Michigan over the whole of the
Territory, including this military post, the persons residing there
were under the dominion of those laws in all particulars to which the
rules and articles of war did not apply.
It thus appears that, by these acts of Congress, not only was a
general system of municipal law borrowed from the State of Michigan,
which did not tolerate slavery, but it was positively enacted that
slavery and involuntary servitude, with only one exception,
specifically described, should not exist there. It is not simply that
slavery is not recognised and cannot be aided by the municipal law. It
is recognised for the purpose of being absolutely prohibited, and
declared incapable of existing within the Territory, save in the
instance of a fugitive slave.
It would not be easy for the Legislature to employ more explicit
language to signify its will that the _status_ of slavery should not
exist within the Territory, than the words found in the act of 1820,
and in the ordinance of 1787; and if any doubt could exist concerning
their application to cases of masters coming into the Territory with
their slaves to reside, that doubt must yield to the inference
required by the words of exception. That exception is, of cases of
fugitive slaves. An exception from a prohibition marks the extent of
the prohibition; for it would be absurd, as well as useless, to except
from a prohibition a case not contained within it. (9 Wheat., 200.) I
must conclude, therefore, that it was the will of Congress that the
state of involuntary servitude of a slave, coming into the Territory
with his master, should cease to exist. The Supreme Court of Missouri
so held in Rachel _v._ Walker, (4 Misso. R., 350,) which was the case
of a military officer going into the Territory with two slaves.
But it is a distinct question, whether the law of Missouri recognised
and allowed effect to the change wrought in the _status_ of the
plaintiff, by force of the laws of the Territory of Wisconsin.
I say the law of Missouri, because a judicial tribunal, in one State
or nation, can recognise personal rights acquired by force of the law
of any other State or nation, only so far as it is the law of the
former State that those rights should be recognised. But, in the
absence of positive law to the contrary, the will of every civilized
State must be presumed to be to allow such effect to foreign laws as
is in accordance with the settled rules of international law. And
legal tribunals are bound to act on this presumption. It may be
assumed that the motive of the State in allowing such operation to
foreign laws is what has been termed comity. But, as has justly been
said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the
State, not of the court. The judges have nothing to do with the motive
of the State. Their duty is simply to ascertain and give effect to its
will. And when it is found by them that its will to depart from a rule
of international law has not been manifested by the State, they are
bound to assume that its will is to give effect to it. Undoubtedly,
every sovereign State may refuse to recognise a change, wrought by the
law of a foreign State, on the _status_ of a person, while within such
foreign State, even in cases where the rules of international law
require that recognition. Its will to refuse such recognition may be
manifested by what we term statute law, or by the customary law of the
State. It is within the province of its judicial tribunals to inquire
and adjudge whether it appears, from the statute or customary law of
the State, to be the will of the State to refuse to recognise such
changes of _status_ by force of foreign law, as the rules of the law
of nations require to be recognised. But, in my opinion, it is not
within the province of any judicial tribunal to refuse such
recognition from any political considerations, or any view it may take
of the exterior political relations between the State and one or more
foreign States, or any impressions it may have that a change of
foreign opinion and action on the subject of slavery may afford a
reason why the State should change its own action. To understand and
give just effect to such considerations, and to change the action of
the State in consequence of them, are functions of diplomatists and
legislators, not of judges.
The inquiry to be made on this part of the case is, therefore, whether
the State of Missouri has, by its statute, or its customary law,
manifested its will to displace any rule of international law,
applicable to a change of the _status_ of a slave, by foreign law.
I have not heard it suggested that there was any statute of the State
of Missouri bearing on this question. The customary law of Missouri is
the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And
the common law, as Blackstone says, (4 Com., 67,) adopts, in its full
extent, the law of nations, and holds it to be a part of the law of
the land.
I know of no sufficient warrant for declaring that any rule of
international law, concerning the recognition, in that State, of a
change of _status_, wrought by an extra-territorial law, has been
displaced or varied by the will of the State of Missouri.
I proceed then to inquire what the rules of international law
prescribe concerning the change of _status_ of the plaintiff wrought
by the law of the Territory of Wisconsin.
It is generally agreed by writers upon international law, and the rule
has been judicially applied in a great number of cases that wherever
any question may arise concerning the _status_ of a person, it must be
determined according to that law which has next previously rightfully
operated on and fixed that _status_. And, further, that the laws of a
country do not rightfully operate upon and fix the _status_ of persons
who are within its limits _in itinere_, or who are abiding there for
definite temporary purposes, as for health, curiosity, or occasional
business; that these laws, known to writers on public and private
international law as personal statutes, operate only on the
inhabitants of the country. Not that it is or can be denied that each
independent nation may, if it thinks fit, apply them to all persons
within their limits. But when this is done, not in conformity with the
principles of international law, other States are not understood to be
willing to recognise or allow effect to such applications of personal
statutes.
It becomes necessary, therefore, to inquire whether the operation of
the laws of the Territory of Wisconsin upon the _status_ of the
plaintiff was or was not such an operation as these principles of
international law require other States to recognise and allow effect
to.
And this renders it needful to attend to the particular facts and
circumstances of this case.
It appears that this case came on for trial before the Circuit Court
and a jury, upon an issue, in substance, whether the plaintiff,
together with his wife and children, were the slaves of the defendant.
The court instructed the jury that, "upon the facts in this case, the
law is with the defendant." This withdrew from the jury the
consideration and decision of every matter of fact. The evidence in
the case consisted of written admissions, signed by the counsel of the
parties. If the case had been submitted to the judgment of the court,
upon an agreed statement of facts, entered of record, in place of a
special verdict, it would have been necessary for the court below, and
for this court, to pronounce its judgment solely on those facts, thus
agreed, without inferring any other facts therefrom. By the rules of
the common law applicable to such a case, and by force of the seventh
article of the amendments of the Constitution, this court is precluded
from finding any fact not agreed to by the parties on the record. No
submission to the court on a statement of facts was made. It was a
trial by jury, in which certain admissions, made by the parties, were
the evidence. The jury were not only competent, but were bound to draw
from that evidence every inference which, in their judgment, exercised
according to the rules of law, it would warrant. The Circuit Court
took from the jury the power to draw any inferences from the
admissions made by the parties, and decided the case for the
defendant. This course can be justified here, if at all, only by its
appearing that upon the facts agreed, and all such inferences of fact
favorable to the plaintiff's case, as the jury might have been
warranted in drawing from those admissions, the law was with the
defendant. Otherwise, the plaintiff would be deprived of the benefit
of his trial by jury, by whom, for aught we can know, those inferences
favorable to his case would have been drawn.
The material facts agreed, bearing on this part of the case, are, that
Dr. Emerson, the plaintiff's master, resided about two years at the
military post of Fort Snelling, being a surgeon in the army of the
United States, his domicil of origin being unknown; and what, if
anything, he had done, to preserve or change his domicil prior to his
residence at Rock Island, being also unknown.
Now, it is true, that under some circumstances the residence of a
military officer at a particular place, in the discharge of his
official duties, does not amount to the acquisition of a technical
domicil. But it cannot be affirmed, with correctness, that it never
does. There being actual residence, and this being presumptive
evidence of domicil, all the circumstances of the case must be
considered, before a legal conclusion can be reached, that his place
of residence is not his domicil. If a military officer stationed at a
particular post should entertain an expectation that his residence
there would be indefinitely protracted, and in consequence should
remove his family to the place where his duties were to be discharged,
form a permanent domestic establishment there, exercise there the
civil rights and discharge the civil duties of an inhabitant, while he
did no act and manifested no intent to have a domicil elsewhere, I
think no one would say that the mere fact that he was himself liable
to be called away by the orders of the Government would prevent his
acquisition of a technical domicil at the place of the residence of
himself and his family. In other words, I do not think a military
officer incapable of acquiring a domicil. (Bruce _v._ Bruce, 2 Bos.
and Pul., 230; Munroe _v._ Douglass, 5 Mad. Ch. R., 232.) This being
so, this case stands thus: there was evidence before the jury that
Emerson resided about two years at Fort Snelling, in the Territory of
Wisconsin. This may or may not have been with such intent as to make
it his technical domicil. The presumption is that it was. It is so
laid down by this court, in Ennis _v._ Smith, (14 How.,) and the
authorities in support of the position are there referred to. His
intent was a question of fact for the jury. (Fitchburg _v._
Winchendon, 4 Cush., 190.)
The case was taken from the jury. If they had power to find that the
presumption of the necessary intent had not been rebutted, we cannot
say, on this record, that Emerson had not his technical domicil at
Fort Snelling. But, for reasons which I shall now proceed to give, I
do not deem it necessary in this case to determine the question of the
technical domicil of Dr. Emerson.
It must be admitted that the inquiry whether the law of a particular
country has rightfully fixed the _status_ of a person, so that in
accordance with the principles of international law that _status_
should be recognised in other jurisdictions, ordinarily depends on the
question whether the person was domiciled in the country whose laws
are asserted to have fixed his _status_. But, in the United States,
questions of this kind may arise, where an attempt to decide solely
with reference to technical domicil, tested by the rules which are
applicable to changes of places of abode from one country to another,
would not be consistent with sound principles. And, in my judgment,
this is one of those cases.
The residence of the plaintiff, who was taken by his master, Dr.
Emerson, as a slave, from Missouri to the State of Illinois, and
thence to the Territory of Wisconsin, must be deemed to have been for
the time being, and until he asserted his own separate intention, the
same as the residence of his master; and the inquiry, whether the
personal statutes of the Territory were rightfully extended over the
plaintiff, and ought, in accordance with the rules of international
law, to be allowed to fix his _status_, must depend upon the
circumstances under which Dr. Emerson went into that Territory, and
remained there; and upon the further question, whether anything was
there rightfully done by the plaintiff to cause those personal
statutes to operate on him.
Dr. Emerson was an officer in the army of the United States. He went
into the Territory to discharge his duty to the United States. The
place was out of the jurisdiction of any particular State, and within
the exclusive jurisdiction of the United States. It does not appear
where the domicil of origin of Dr. Emerson was, nor whether or not he
had lost it, and gained another domicil, nor of what particular State,
if any, he was a citizen.
On what ground can it be denied that all valid laws of the United
States, constitutionally enacted by Congress for the government of the
Territory, rightfully extended over an officer of the United States
and his servant who went into the Territory to remain there for an
indefinite length of time, to take part in its civil or military
affairs? They were not foreigners, coming from abroad. Dr. Emerson was
a citizen of the country which had exclusive jurisdiction over the
Territory; and not only a citizen, but he went there in a public
capacity, in the service of the same sovereignty which made the laws.
Whatever those laws might be, whether of the kind denominated personal
statutes, or not, so far as they were intended by the legislative
will, constitutionally expressed, to operate on him and his servant,
and on the relations between them, they had a rightful operation, and
no other State or country can refuse to allow that those laws might
rightfully operate on the plaintiff and his servant, because such a
refusal would be a denial that the United States could, by laws
constitutionally enacted, govern their own servants, residing on their
own Territory, over which the United States had the exclusive control,
and in respect to which they are an independent sovereign power.
Whether the laws now in question were constitutionally enacted, I
repeat once more, is a separate question. But, assuming that they
were, and that they operated directly on the _status_ of the
plaintiff, I consider that no other State or country could question
the rightful power of the United States so to legislate, or,
consistently with the settled rules of international law, could refuse
to recognise the effects of such legislation upon the _status_ of
their officers and servants, as valid everywhere.
This alone would, in my apprehension, be sufficient to decide this
question.
But there are other facts stated on the record which should not be
passed over. It is agreed that, in the year 1836, the plaintiff, while
residing in the Territory, was married, with the consent of Dr.
Emerson, to Harriet, named in the declaration as his wife, and that
Eliza and Lizzie were the children of that marriage, the first named
having been born on the Mississippi river, north of the line of
Missouri, and the other having been born after their return to
Missouri. And the inquiry is, whether, after the marriage of the
plaintiff in the Territory, with the consent of Dr. Emerson, any other
State or country can, consistently with the settled rules of
international law, refuse to recognise and treat him as a free man,
when suing for the liberty of himself, his wife, and the children of
that marriage. It is in reference to his _status_, as viewed in other
States and countries, that the contract of marriage and the birth of
children becomes strictly material. At the same time, it is proper to
observe that the female to whom he was married having been taken to
the same military post of Fort Snelling as a slave, and Dr. Emerson
claiming also to be her master at the time of her marriage, her
_status_, and that of the children of the marriage, are also affected
by the same considerations.
If the laws of Congress governing the Territory of Wisconsin were
constitutional and valid laws, there can be no doubt these parties
were capable of contracting a lawful marriage, attended with all the
usual civil rights and obligations of that condition. In that
Territory they were absolutely free persons, having full capacity to
enter into the civil contract of marriage.
It is a principle of international law, settled beyond controversy in
England and America, that a marriage, valid by the law of the place
where it was contracted, and not in fraud of the law of any other
place, is valid everywhere; and that no technical domicil at the place
of the contract is necessary to make it so. (See Bishop on Mar. and
Div., 125-129, where the cases are collected.)
If, in Missouri, the plaintiff were held to be a slave, the validity
and operation of his contract of marriage must be denied. He can have
no legal rights; of course, not those of a husband and father. And the
same is true of his wife and children. The denial of his rights is the
denial of theirs. So that, though lawfully married in the Territory,
when they came out of it, into the State of Missouri, they were no
longer husband and wife; and a child of that lawful marriage, though
born under the same dominion where its parents contracted a lawful
marriage, is not the fruit of that marriage, nor the child of its
father, but subject to the maxim, _partus sequitur ventrem_.
It must be borne in mind that in this case there is no ground for the
inquiry, whether it be the will of the State of Missouri not to
recognise the validity of the marriage of a fugitive slave, who
escapes into a State or country where slavery is not allowed, and
there contracts a marriage; or the validity of such a marriage, where
the master, being a citizen of the State of Missouri, voluntarily goes
with his slave, _in itinere_, into a State or country which does not
permit slavery to exist, and the slave there contracts marriage
without the consent of his master; for in this case, it is agreed, Dr.
Emerson did consent; and no further question can arise concerning his
rights, so far as their assertion is inconsistent with the validity of
the marriage. Nor do I know of any ground for the assertion that this
marriage was in fraud of any law of Missouri. It has been held by this
court, that a bequest of property by a master to his slave, by
necessary implication entitles the slave to his freedom; because, only
as a freeman could he take and hold the bequest. (Legrand _v._
Darnall, 2 Pet. R., 664.) It has also been held, that when a master
goes with his slave to reside for an indefinite period in a State
where slavery is not tolerated, this operates as an act of
manumission; because it is sufficiently expressive of the consent of
the master that the slave should be free. (2 Marshall's Ken. R., 470;
14 Martin's Louis. R., 401.)
What, then, shall we say of the consent of the master, that the slave
may contract a lawful marriage, attended with all the civil rights and
duties which belong to that relation; that he may enter into a
relation which none but a free man can assume--a relation which
involves not only the rights and duties of the slave, but those of the
other party to the contract, and of their descendants to the remotest
generation? In my judgment, there can be no more effectual abandonment
of the legal rights of a master over his slave, than by the consent of
the master that the slave should enter into a contract of marriage, in
a free State, attended by all the civil rights and obligations which
belong to that condition.
And any claim by Dr. Emerson, or any one claiming under him, the
effect of which is to deny the validity of this marriage, and the
lawful paternity of the children born from it, wherever asserted, is,
in my judgment, a claim inconsistent with good faith and sound reason,
as well as with the rules of international law. And I go further: in
my opinion, a law of the State of Missouri, which should thus annul a
marriage, lawfully contracted by these parties while resident in
Wisconsin, not in fraud of any law of Missouri, or of any right of Dr.
Emerson, who consented thereto, would be a law impairing the
obligation of a contract, and within the prohibition of the
Constitution of the United States. (See 4 Wheat., 629, 695, 696.)
To avoid misapprehension on this important and difficult subject, I
will state, distinctly, the conclusions at which I have arrived. They
are:
_First._ The rules of international law respecting the emancipation of
slaves, by the rightful operation of the laws of another State or
country upon the _status_ of the slave, while resident in such foreign
State or country, are part of the common law of Missouri, and have not
been abrogated by any statute law of that State.
_Second._ The laws of the United States, constitutionally enacted,
which operated directly on and changed the _status_ of a slave coming
into the Territory of Wisconsin with his master, who went thither to
reside for an indefinite length of time, in the performance of his
duties as an officer of the United States, had a rightful operation on
the _status_ of the slave, and it is in conformity with the rules of
international law that this change of _status_ should be recognised
everywhere.
_Third._ The laws of the United States, in operation in the Territory
of Wisconsin at the time of the plaintiff's residence there, did act
directly on the _status_ of the plaintiff, and change his _status_ to
that of a free man.
_Fourth._ The plaintiff and his wife were capable of contracting, and,
with the consent of Dr. Emerson, did contract a marriage in that
Territory, valid under its laws; and the validity of this marriage
cannot be questioned in Missouri, save by showing that it was in fraud
of the laws of that State, or of some right derived from them; which
cannot be shown in this case, because the master consented to it.
_Fifth._ That the consent of the master that his slave, residing in a
country which does not tolerate slavery, may enter into a lawful
contract of marriage, attended with the civil rights and duties which
belong to that condition, is an effectual act of emancipation. And the
law does not enable Dr. Emerson, or any one claiming under him, to
assert a title to the married persons as slaves, and thus destroy the
obligation of the contract of marriage, and bastardize their issue,
and reduce them to slavery.