case by its decision in Scott _v._ Emerson, (15 Missouri Reports,
576;) and that this decision is in conformity with the weight of
authority elsewhere, and with sound principles. If the Supreme Court
of Missouri had placed its decision on the ground that it appeared Dr.
Emerson never became domiciled in the Territory and so its laws could
not rightfully operate on him and his slave; and the facts that he
went there to reside indefinitely, as an officer of the United States,
and that the plaintiff was lawfully married there, with Dr. Emerson's
consent, were left out of view, the decision would find support in
other cases, and I might not be prepared to deny its correctness. But
the decision is not rested on this ground. The domicil of Dr. Emerson
in that Territory is not questioned in that decision; and it is placed
on a broad denial of the operation, in Missouri, of the law of any
foreign State or country upon the _status_ of a slave, going with his
master from Missouri into such foreign State or country, even though
they went thither to become, and actually became, permanent
inhabitants of such foreign State or country, the laws whereof acted
directly on the _status_ of the slave, and changed his _status_ to
that of a freeman.
To the correctness of such a decision I cannot assent. In my judgment,
the opinion of the majority of the court in that case is in conflict
with its previous decisions, with a great weight of judicial authority
in other slaveholding States, and with fundamental principles of
private international law. Mr. Chief Justice Gamble, in his dissenting
opinion in that case, said:
"I regard the question as conclusively settled by repeated
adjudications of this court; and if I doubted or denied the propriety
of those decisions, I would not feel myself any more at liberty to
overturn them, than I would any other series of decisions by which the
law upon any other question had been settled. There is with me nothing
in the law of slavery which distinguishes it from the law on any other
subject, or allows any more accommodation to the temporary excitements
which have gathered around it.... But in the midst of all such
excitement, it is proper that the judicial mind, calm and
self-balanced, should adhere to principles established when there was
no feeling to disturb the view of the legal questions upon which the
rights of parties depend."
"In this State, it has been recognised from the beginning of the
Government as a correct position in law, that the master who takes his
slave to reside in a State or Territory where slavery is prohibited,
thereby emancipates his slave." (Winney _v._ Whitesides, 1 Mo., 473;
Le Grange [Transcriber's Note: La Grange] _v._ Chouteau, 2 Mo., 20;
Milley _v._ Smith, Ib., 36; Ralph _v._ Duncan, 3 Mo., 194; Julia _v._
McKinney, Ib., 270; Nat _v._ Ruddle, Ib., 400; Rachel _v._ Walker, 4
Mo., 350; Wilson _v._ Melvin, 592.)
Chief Justice Gamble has also examined the decisions of the courts of
other States in which slavery is established, and finds them in
accordance with these preceding decisions of the Supreme Court of
Missouri to which he refers.
It would be a useless parade of learning for me to go over the ground
which he has so fully and ably occupied.
But it is further insisted we are bound to follow this decision. I do
not think so. In this case, it is to be determined what laws of the
United States were in operation in the Territory of Wisconsin, and
what was their effect on the _status_ of the plaintiff. Could the
plaintiff contract a lawful marriage there? Does any law of the State
of Missouri impair the obligation of that contract of marriage,
destroy his rights as a husband, bastardize the issue of the marriage,
and reduce them to a state of slavery?
These questions, which arise exclusively under the Constitution and
laws of the United States, this court, under the Constitution and laws
of the United States, has the rightful authority finally to decide.
And if we look beyond these questions, we come to the consideration
whether the rules of international law, which are part of the laws of
Missouri until displaced by some statute not alleged to exist, do or
do not require the _status_ of the plaintiff, as fixed by the laws of
the Territory of Wisconsin, to be recognised in Missouri. Upon such a
question, not depending on any statute or local usage, but on
principles of universal jurisprudence, this court has repeatedly
asserted it could not hold itself bound by the decisions of State
courts, however great respect might be felt for their learning,
ability, and impartiality. (See Swift _v._ Tyson, 16 Peters's R., 1;
Carpenter _v._ The Providence Ins. Co., Ib., 495; Foxcroft _v._
Mallet, 4 How., 353; Rowan _v._ Runnels, 5 How., 134.)
Some reliance has been placed on the fact that the decision in the
Supreme Court of Missouri was between these parties, and the suit
there was abandoned to obtain another trial in the courts of the
United States.
In Homer _v._ Brown, (16 How., 354,) this court made a decision upon
the construction of a devise of lands, in direct opposition to the
unanimous opinion of the Supreme Court of Massachusetts, between the
same parties, respecting the same subject-matter--the claimant having
become nonsuit in the State court, in order to bring his action in the
Circuit Court of the United States. I did not sit in that case, having
been of counsel for one of the parties while at the bar; but, on
examining the report of the argument of the counsel for the plaintiff
in error, I find they made the point, that this court ought to give
effect to the construction put upon the will by the State court, to
the end that rights respecting lands may be governed by one law, and
that the law of the place where the lands are situated; that they
referred to the State decision of the case, reported in 3 Cushing,
390, and to many decisions of this court. But this court does not seem
to have considered the point of sufficient importance to notice it in
their opinions. In Millar _v._ Austin, (13 How., 218,) an action was
brought by the endorsee of a written promise. The question was,
whether it was negotiable under a statute of Ohio. The Supreme Court
of that State having decided it was not negotiable, the plaintiff
became nonsuit, and brought his action in the Circuit Court of the
United States. The decision of the Supreme Court of the State,
reported 4 Ves., L.J., 527, was relied on. This court unanimously held
the paper to be negotiable.
When the decisions of the highest court of a State are directly in
conflict with each other, it has been repeatedly held, here, that the
last decision is not necessarily to be taken as the rule. (State Bank
_v._ Knoop, 16 How., 369; Pease _v._ Peck, 18 How., 599.)
To these considerations I desire to add, that it was not made known to
the Supreme Court of Missouri, so far as appears, that the plaintiff
was married in Wisconsin with the consent of Dr. Emerson, and it is
not made known to us that Dr. Emerson was a citizen of Missouri, a
fact to which that court seem to have attached much importance.
Sitting here to administer the law between these parties, I do not
feel at liberty to surrender my own convictions of what the law
requires, to the authority of the decision in 15 Missouri Reports.
I have thus far assumed, merely for the purpose of the argument, that
the laws of the United States, respecting slavery in this Territory,
were constitutionally enacted by Congress. It remains to inquire
whether they are constitutional and binding laws.
In the argument of this part of the case at bar, it was justly
considered by all the counsel to be necessary to ascertain the source
of the power of Congress over the territory belonging to the United
States. Until this is ascertained, it is not possible to determine the
extent of that power. On the one side it was maintained that the
Constitution contains no express grant of power to organize and govern
what is now known to the laws of the United States as a Territory.
That whatever power of this kind exists, is derived by implication
from the capacity of the United States to hold and acquire territory
out of the limits of any State, and the necessity for its having some
government.
On the other side, it was insisted that the Constitution has not
failed to make an express provision for this end, and that it is found
in the third section of the fourth article of the Constitution.
To determine which of these is the correct view, it is needful to
advert to some facts respecting this subject, which existed when the
Constitution was framed and adopted. It will be found that these facts
not only shed much light on the question, whether the framers of the
Constitution omitted to make a provision concerning the power of
Congress to organize and govern Territories, but they will also aid in
the construction of any provision which may have been made respecting
this subject.
Under the Confederation, the unsettled territory within the limits of
the United States had been a subject of deep interest. Some of the
States insisted that these lands were within their chartered
boundaries, and that they had succeeded to the title of the Crown to
the soil. On the other hand, it was argued that the vacant lands had
been acquired by the United States, by the war carried on by them
under a common Government and for the common interest.
This dispute was further complicated by unsettled questions of
boundary among several States. It not only delayed the accession of
Maryland to the Confederation, but at one time seriously threatened
its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of
these circumstances, Congress earnestly recommended to the several
States a cession of their claims and rights to the United States. (5
Jour. of Cong., 442.) And before the Constitution was framed, it had
been begun. That by New York had been made on the 1st day of March,
1781; that of Virginia on the 1st day of March, 1784; that of
Massachusetts on the 19th day of April, 1785; that of Connecticut on
the 14th day of September, 1786; that of South Carolina on the 8th day
of August, 1787, while the Convention for framing the Constitution was
in session.
It is very material to observe, in this connection, that each of these
acts cedes, in terms, to the United States, as well the jurisdiction
as the soil.
It is also equally important to note that, when the Constitution was
framed and adopted, this plan of vesting in the United States, for the
common good, the great tracts of ungranted lands claimed by the
several States, in which so deep an interest was felt, was yet
incomplete. It remained for North Carolina and Georgia to cede their
extensive and valuable claims. These were made, by North Carolina on
the 25th day of February, 1790, and by Georgia on the 24th day of
April, 1802. The terms of these last-mentioned cessions will
hereafter be noticed in another connection; but I observe here that
each of them distinctly shows, upon its face, that they were not only
in execution of the general plan proposed by the Congress of the
Confederation, but of a formed purpose of each of these States,
existing when the assent of their respective people was given to the
Constitution of the United States.
It appears, then, that when the Federal Constitution was framed, and
presented to the people of the several States for their consideration,
the unsettled territory was viewed as justly applicable to the common
benefit, so far as it then had or might attain thereafter a pecuniary
value; and so far as it might become the seat of new States, to be
admitted into the Union upon an equal footing with the original
States. And also that the relations of the United States to that
unsettled territory were of different kinds. The titles of the States
of New York, Virginia, Massachusetts, Connecticut, and South Carolina,
as well of soil as of jurisdiction, had been transferred to the United
States. North Carolina and Georgia had not actually made transfers,
but a confident expectation, founded on their appreciation of the
justice of the general claim, and fully justified by the results, was
entertained, that these cessions would be made. The ordinance of 1787
had made provision for the temporary government of so much of the
territory actually ceded as lay northwest of the river Ohio.
But it must have been apparent, both to the framers of the
Constitution and the people of the several States who were to act upon
it, that the Government thus provided for could not continue, unless
the Constitution should confer on the United States the necessary
powers to continue it. That temporary Government, under the ordinance,
was to consist of certain officers, to be appointed by and responsible
to the Congress of the Confederation; their powers had been conferred
and defined by the ordinance. So far as it provided for the temporary
government of the Territory, it was an ordinary act of legislation,
deriving its force from the legislative power of Congress, and
depending for its vitality upon the continuance of that legislative
power. But the officers to be appointed for the Northwestern
Territory, after the adoption of the Constitution, must necessarily be
officers of the United States, and not of the Congress of the
Confederation; appointed and commissioned by the President, and
exercising powers derived from the United States under the
Constitution.
Such was the relation between the United States and the Northwestern
Territory, which all reflecting men must have foreseen would exist,
when the Government created by the Constitution should supersede that
of the Confederation. That if the new Government should be without
power to govern this Territory, it could not appoint and commission
officers, and send them into the Territory, to exercise there
legislative, judicial, and executive power; and that this Territory,
which was even then foreseen to be so important, both politically and
financially, to all the existing States, must be left not only without
the control of the General Government, in respect to its future
political relations to the rest of the States, but absolutely without
any Government, save what its inhabitants, acting in their primary
capacity, might from time to time create for themselves.
But this Northwestern Territory was not the only territory, the soil
and jurisdiction whereof were then understood to have been ceded to
the United States. The cession by South Carolina, made in August,
1787, was of "all the territory included within the river Mississippi,
and a line beginning at that part of the said river which is
intersected by the southern boundary of North Carolina, and continuing
along the said boundary line until it intersects the ridge or chain of
mountains which divides the Eastern from the Western waters; then to
be continued along the top of the said ridge of mountains, until it
intersects a line to be drawn due west from the head of the southern
branch of the Tugaloo river, to the said mountains; and thence to run
a due west course to the river Mississippi."
It is true that by subsequent explorations it was ascertained that the
source of the Tugaloo river, upon which the title of South Carolina
depended, was so far to the northward, that the transfer conveyed only
a narrow slip of land, about twelve miles wide, lying on the top of
the ridge of mountains, and extending from the northern boundary of
Georgia to the southern boundary of North Carolina. But this was a
discovery made long after the cession, and there can be no doubt that
the State of South Carolina, in making the cession, and the Congress
in accepting it, viewed it as a transfer to the United States of the
soil and jurisdiction of an extensive and important part of the
unsettled territory ceded by the Crown of Great Britain by the treaty
of peace, though its quantity or extent then remained to be
ascertained.[5]
[Footnote 5: _Note by Mr. Justice Curtis._ This statement that _some_
territory did actually pass by this cession, is taken from the opinion
of the court, delivered by Mr. Justice Wayne, in the case of Howard
_v._ Ingersoll, reported in 13 How., 405. It is an obscure matter,
and, on some examination of it, I have been led to doubt whether any
territory actually passed by this cession. But as the fact is not
important to the argument, I have not thought it necessary further to
investigate it.]
It must be remembered also, as has been already stated, that not only
was there a confident expectation entertained by the other States,
that North Carolina and Georgia would complete the plan already so far
executed by New York, Virginia, Massachusetts, Connecticut, and South
Carolina, but that the opinion was in no small degree prevalent, that
the just title to this "back country," as it was termed, had vested in
the United States by the treaty of peace, and could not rightfully be
claimed by any individual State.
There is another consideration applicable to this part of the subject,
and entitled, in my judgment, to great weight.
The Congress of the Confederation had assumed the power not only to
dispose of the lands ceded, but to institute Governments and make laws
for their inhabitants. In other words, they had proceeded to act under
the cession, which, as we have seen, was as well of the jurisdiction
as of the soil. This ordinance was passed on the 13th of July, 1787.
The Convention for framing the Constitution was then in session at
Philadelphia. The proof is direct and decisive, that it was known to
the Convention.[6] It is equally clear that it was admitted and
understood not to be within the legitimate powers of the Confederation
to pass this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276;
Federalist, Nos. 38, 43.)
[Footnote 6: It was published in a newspaper at Philadelphia, in May,
and a copy of it was sent by R.H. Lee to Gen. Washington, on the 15th
of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of
Washington, vol. 9, p. 174.)]
The importance of conferring on the new Government regular powers
commensurate with the objects to be attained, and thus avoiding the
alternative of a failure to execute the trust assumed by the
acceptance of the cessions made and expected, or its execution by
usurpation, could scarcely fail to be perceived. That it was in fact
perceived, is clearly shown by the Federalist, (No. 38,) where this
very argument is made use of in commendation of the Constitution.
Keeping these facts in view, it may confidently be asserted that there
is very strong reason to believe, before we examine the Constitution
itself, that the necessity for a competent grant of power to hold,
dispose of, and govern territory, ceded and expected to be ceded,
could not have escaped the attention of those who framed or adopted
the Constitution; and that if it did not escape their attention, it
could not fail to be adequately provided for.
Any other conclusion would involve the assumption that a subject of
the gravest national concern, respecting which the small States felt
so much jealousy that it had been almost an insurmountable obstacle to
the formation of the Confederation, and as to which all the States had
deep pecuniary and political interests, and which had been so recently
and constantly agitated, was nevertheless overlooked; or that such a
subject was not overlooked, but designedly left unprovided for, though
it was manifestly a subject of common concern, which belonged to the
care of the General Government, and adequate provision for which could
not fail to be deemed necessary and proper.
The admission of new States, to be framed out of the ceded territory,
early attracted the attention of the Convention. Among the resolutions
introduced by Mr. Randolph, on the 29th of May, was one on this
subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in
Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and
reported to the Convention on the 13th of June, (5 Elliot, 190,) was
referred to the Committee of Detail, to prepare the Constitution, on
the 26th of July, (5 Elliot, 376.) This committee reported an article
for the admission of new States "lawfully constituted or established."
Nothing was said concerning the power of Congress to prepare or form
such States. This omission struck Mr. Madison, who, on the 18th of
August, (5 Elliot, 439,) moved for the insertion of power to dispose
of the unappropriated lands of the United States, and to institute
temporary Governments for new States arising therein.
On the 29th of August, (5 Elliot, 492,) the report of the committee
was taken up, and after debate, which exhibited great diversity of
views concerning the proper mode of providing for the subject, arising
out of the supposed diversity of interests of the large and small
States, and between those which had and those which had not unsettled
territory, but no difference of opinion respecting the propriety and
necessity of some adequate provision for the subject, Gouverneur
Morris moved the clause as it stands in the Constitution. This met
with general approbation, and was at once adopted. The whole section
is as follows:
"New States may be admitted by the Congress into 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 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 any
particular State."
That Congress has some power to institute temporary Governments over
the territory, I believe all agree; and, if it be admitted that the
necessity of some power to govern the territory of the United States
could not and did not escape the attention of the Convention and the
people, and that the necessity is so great, that, in the absence of
any express grant, it is strong enough to raise an implication of the
existence of that power, it would seem to follow that it is also
strong enough to afford material aid in construing an express grant of
power respecting that territory; and that they who maintain the
existence of the power, without finding any words at all in which it
is conveyed, should be willing to receive a reasonable interpretation
of language of the Constitution, manifestly intended to relate to the
territory, and to convey to Congress some authority concerning it.
It would seem, also, that when we find the subject-matter of the
growth and formation and admission of new States, and the disposal of
the territory for these ends, were under consideration, and that some
provision therefor was expressly made, it is improbable that it would
be, in its terms, a grossly inadequate provision; and that an
indispensably necessary power to institute temporary Governments, and
to legislate for the inhabitants of the territory, was passed silently
by, and left to be deduced from the necessity of the case.
In the argument at the bar, great attention has been paid to the
meaning of the word "territory."
Ordinarily, when the territory of a sovereign power is spoken of, it
refers to that tract of country which is under the political
jurisdiction of that sovereign power. Thus Chief Justice Marshall (in
United States _v._ Bevans, 3 Wheat., 386) says: "What, then, is the
extent of jurisdiction which a State possesses? We answer, without
hesitation, the jurisdiction of a State is coextensive with its
territory." Examples might easily be multiplied of this use of the
word, but they are unnecessary, because it is familiar. But the word
"territory" is not used in this broad and general sense in this clause
of the Constitution.
At the time of the adoption of the Constitution, the United States
held a great tract of country northwest of the Ohio; another tract,
then of unknown extent, ceded by South Carolina; and a confident
expectation was then entertained, and afterwards realized, that they
then were or would become the owners of other great tracts, claimed by
North Carolina and Georgia. These ceded tracts lay within the limits
of the United States, and out of the limits of any particular State;
and the cessions embraced the civil and political jurisdiction, and so
much of the soil as had not previously been granted to individuals.