I dissent from the opinion pronounced by the Chief Justice, and from the judgment
which the majority of the court think it proper to render in this case. The plaintiff
alleged, in his declaration, that he was a citizen of the , and that
the defendant was a citizen of the . It is not doubted that it was
necessary to make each of these allegations, to sustain the jurisdiction of the
Circuit CourtCircuit Court . The defendant denied, by a plea to the jurisdiction, either
sufficient or insufficient, that the plaintiff was a citizen of the .
The plaintiff demurred to that plea. The Circuit CourtCircuit Court adjudged the plea insufficient,
and the first question for our consideration is, whether the sufficiency of that plea
is before this court for judgment, upon this writ of error. The part of the judicial
power of the , conferred by CongressCongress on the Circuit CourtsCircuit Court , being limited
to certain described cases and controversies, the question whether a particular
case is within the cognizance of a Circuit CourtCircuit Court , may be raised by a plea to the
jurisdiction of such court. When that question has been raised, the Circuit CourtCircuit Court must, in the first
instance, pass upon and determine it. Whether its determination be final, or subject to review by
this appellate court, must depend upon the will of CongressCongress ; upon which body the Constitution has
conferred the power, with certain restrictions, to establish inferior courts, to determine their
jurisdiction, and to regulate the appellate power of this court.
The twenty-second section of the judiciary act of 1789, which allows a writ of error from final judgments of Circuit CourtsCircuit Court , provides that there shall be no reversal in this court, on such writ of error, for error in ruling any plea in abatement, other than a plea to the jurisdiction of the court. Accordingly it has been held, from the origin of the court to the present day, that Circuit CourtsCircuit Court have not been made by CongressCongress the final judges of their own jurisdiction in civil cases. And that when a record comes here upon a writ of error or appeal, and, on its inspection, it appears to this court that the Circuit CourtCircuit Court had not jurisdiction, its judgment must be reversed, and the cause remanded, to be dismissed for want of jurisdiction.
It is alleged by the defendant in error, in this case, that the plea to the jurisdiction was a sufficient plea; that it shows, on inspection of its allegations, confessed by the demurrer, that the plaintiff was not a citizen of the ; that upon this record, it must appear to this court that the case was not within the judicial power of the , as defined and granted by the Constitution, because it was not a suit by a citizen of one State against a citizen of another State.
To this it is answered, first, that the defendant, by pleading over, after the plea to the jurisdiction was adjudged insufficient, finally waived all benefit of that plea.
When that plea was adjudged insufficient, the defendant was obliged to answer over. He held no alternative. He could not stop the further progress of the case in the Circuit CourtCircuit Court by a writ of error, on which the sufficiency of his plea to the jurisdiction could be tried in this court, because the judgment on that plea was not final, and no writ of error would lie. He was forced to plead to the merits. It cannot be true, then, that he waived the benefit of his plea to the jurisdiction by answering over. Waiver includes consent. Here, there was no consent. And if the benefit of the plea was finally lost, it must be, not by any waiver, but because the laws of the have not provided any mode of reviewing the decision of the Circuit CourtCircuit Court on such a plea, when that decision is against the defendant. This is not the law. Whether the decision of the Circuit CourtCircuit Court on a plea to the jurisdiction be against the plaintiff, or against the defendant, the losing party may have any alleged error in law, in ruling such a plea, examined in this court on a writ of error, when the matter in controversy exceeds the sum or value of two thousand dollars. If the decision be against the plaintiff, and his suit dismissed for want of jurisdiction, the judgment is technically final, and he may at once sue out his writ of error. (Mollan versusv.Torrance , 9 Wheat., 537.) If the decision be against the defendant, though he must answer over, and wait for a final judgment in the cause, he may then have his writ of error, and upon it obtain the judgment of this court on any question of law apparent on the record, touching the jurisdiction. The fact that he pleaded over to the merits, under compulsion, can have no effect on his right to object to the jurisdiction. If this were not so, the condition of the two parties would be grossly unequal. For if a plea to the jurisdiction were ruled against the plaintiff, he could at once take his writ of error, and have the ruling reviewed here; while, if the same plea were ruled against the defendant, he must not only wait for a final judgment, but could in no event have the ruling of the Circuit CourtCircuit Court upon the plea reviewed by this court. I know of no ground for saying that the laws of the have thus discriminated between the parties to a suit in its courts.
It is further objected, that as the judgment of the Circuit CourtCircuit Court was in favor of the defendant, and the writ of error in this cause was sued out by the plaintiff, the defendant is not in a condition to assign any error in the record, and therefore this court is precluded from considering the question whether the Circuit CourtCircuit Court had jurisdiction.
The practice of this court does not require a technical assignment of errors. (See the rule.) Upon a writ of error, the whole record is open for inspection; and if any error be found in it, the judgment is reversed. (Bank of U. S. versusv.SmithSmith , 11 Wheat., 171.)
It is true, as a general rule, that the court will not allow a party to
rely on anything as cause for reversing a judgment, which was for his
advantage. In this, we follow an ancient rule of the common law. But
so careful was that law of the preservation of the course of its courts,
that it made an exception out of that general rule, and allowed a party
to assign for error that which was for his advantage, if it were a
departure by the court itself from its settled-course of procedure.
The cases on this subject are collected in
Bac. Ab., Error H. 4. And this court followed this practice in CapronCapron versusv.Van NoordenVan Noorden , (2 CranchCranch , 126,) where the plaintiff below procured the reversal of a judgment for the defendant, on the ground that the plaintiff's allegations of citizenship had not shown jurisdiction.
But it is not necessary to determine whether the defendant can be allowed to assign want of jurisdiction as an error in a judgment in his own favor. The true question is, not what either of the parties may be allowed to do, but whether this court will affirm or reverse a judgment of the Circuit CourtCircuit Court on the merits, when it appears on the record, by a plea to the jurisdiction, that it is a case to which the judicial power of the does not extend. The course of the court is, where no motion is made by either party, on its own motion, to reverse such a judgment for want of jurisdiction, not only in cases where it is shown, negatively, by a plea to the jurisdiction, that jurisdiction does not exist, but even where it does not appear, affirmatively, that it does exist. (Pequignot versusv.The Pennsylvania R. R. Co. , 16 How., 104.) It acts upon the principle that the judicial power of the must not be exerted in a case to which it does not extend, even if both parties desire to have it exerted. (Cutler versusv.Rae , 7 How., 729.) I consider, therefore, that when there was a plea to the jurisdiction of the Circuit CourtCircuit Court in a case brought here by a writ of error, the first duty of this court is, sua sponte, if not moved to it by either party, to examine the sufficiency of that plea; and thus to take care that neither the Circuit CourtCircuit Court nor this court shall use the judicial power of the in a case to which the Constitution and laws of the have not extended that power.
I proceed, therefore, to examine the plea to the jurisdiction.
I do not perceive any sound reason why it is not to be judged by the rules of the common law applicable to such pleas. It is true, where the jurisdiction of the Circuit CourtCircuit Court depends on the citizenship of the parties, it is incumbent on the plaintiff to allege on the record the necessary citizenship; but when he has done so, the defendant must interpose a plea in abatement, the allegations whereof show that the court has not jurisdiction; and it is incumbent on him to prove the truth of his plea.
In Sheppard versusv.Groves , (14 How., 27,) the rules on this subject are thus stated in the opinion of the court: "That although, in the courts of the , it is necessary to set forth the grounds of their cognizance as courts of limited jurisdiction, yet wherever jurisdiction shall be averred in the pleadings, in conformity with the laws creating those courts, it must be taken, prima facie, as existing; and it is incumbent on him who would impeach that jurisdiction for causes dehors the pleading, to allege and prove such causes; that the necessity for the allegation, and the burden of sustaining it by proof, both rest upon the party taking the exception." These positions are sustained by the authorities there cited, as well as by Wickliffe versusv.OwingsOwings , (17 How., 47.)
When, therefore, as in this case, the necessary averments as to citizenship
are made on the record, and jurisdiction is assumed to exist, and the defendant
comes by a plea to the jurisdiction to displace that presumption, he occupies,
in my judgment, precisely the position described in
Bacon Ab., Abatement: "Abatement, in the general acceptation of the word, signifies a plea, put in by the defendant, in which he shows cause to the court why he should not be impleaded; or, if at all, not in the manner and form he now is."
This being, then, a plea in abatement, to the jurisdiction of the court, I must judge of its sufficiency by those rules of the common law applicable to such pleas.
The plea was as follows: "And the said John F. A. SandfordJohn F A Sandford , in his own proper person, comes and says that this court ought not to have or take further cognizance of the action aforesaid, because he says that said cause of action, and each and every of them, (if any such have accrued to the said Dred ScottDred Scott ,) accrued to the said Dred ScottDred Scott out of the jurisdiction of this court, and exclusively within the jurisdiction of the courts of the ; for that, to wit, the said plaintiff, Dred ScottDred Scott , is not a citizen of the , as alleged in his declaration, because he is a negro of African descent; his ancestors were of pure African blood, and were brought into this country and sold as negro slaves, and this the said SandfordSanford is ready to verify. Wherefore, he prays judgment whether this court can or will take further cognizance of the action aforesaid."
The plaintiff demurred, and the judgment of the Circuit CourtCircuit Court was, that the plea was insufficient.
I cannot treat this plea as a general traverse of the citizenship
alleged by the plaintiff. IndeedIndeed , if it were so treated, the plea was
clearly bad, for it concludes with a verification, and not to the
country, as a general traverse should. And though this defect in a
plea in bar must be pointed out by a special demurrer, it is never
necessary to demur specially to a plea in abatement; all matters,
though of form only, may be taken advantage of upon a general demurrer
to such a plea. (
Chitty on PleadingPl., 465.)
The truth is, that though not drawn with the utmost technical accuracy,
it is a special traverse of the plaintiff's allegation
of citizenship, and was a suitable and proper mode of traverse under the
circumstances. By reference to 's description of the uses of such a
traverse, contained in his excellent analysis of pleadings,
StephenSteph. on PleadingPl., 176,) it will be seen how precisely this plea meets one of his descriptions. No doubt the defendant might have traversed, by a common or general traverse, the plaintiff's allegation that he was a citizen of the , concluding to the country. The issue thus presented being joined, would have involved matter of law, on which the jury must have passed, under the direction of the court. But by traversing the plaintiffs citizenship speciallyâthat is, averring those facts on which the defendant relied to show that in point of law the plaintiff was not a citizen, and basing the traverse on those facts as a deduction therefromâ opportunity was given to do, what was done; that is, to present directly to the court, by a demurrer, the sufficiency of those facts to negative, in point of law, the plaintiff's allegation of citizenship. This, then, being a special, and not a general or common traverse, the rule is settled, that the facts thus set out in the plea, as the reason or ground of the traverse, must of themselves constitute, in point of law, a negative of the allegation thus traversed. (
StephenStephen on PleadingPl., 183;
ChittyCh. on PleadingPl., 620.) And upon a demurrer to this plea, the question which arises is, whether the facts, that the plaintiff is a negro, of African descent, whose ancestors were of pure African blood, and were brought into this country and sold as negro slaves, may all be true, and yet the plaintiff be a citizen of the , within the meaning of the Constitution and laws of the , which confer on citizens of one State the right to sue citizens of another State in the Circuit CourtsCircuit Court . Undoubtedly, if these facts, taken together, amount to an allegation that, at the time of action brought, the plaintiff was himself a slave, the plea is sufficient. It has been suggested that the plea, in legal effect, does so aver, because, if his ancestors were sold as slaves, the presumption is they continued slaves; and if so, the presumption is, the plaintiff was born a slave; and if so, the presumption is, he continued to be a slave to the time of action brought.
I cannot think such presumptions can be resorted to, to help out defective
averments in pleading; especially, in pleading in abatement, where the utmost
certainty and precision are required. (
Chitty on PleadingPl., 457.) That the plaintiff himself was a slave at the time of action brought, is a substantive fact, having no necessary connection with the fact that his parents were sold as slaves. For they might have been sold after he was born; or the plaintiff himself, if once a slave, might have became a freeman before action brought. To aver that his ancestors were sold as slaves, is not equivalent, in point of law, to an averment that he was a slave. If it were, he could not even confess and avoid the averment of the slavery of his ancestors, which would be monstrous; and if it be not equivalent in point of law, it cannot be treated as amounting thereto when demurred to; for a demurrer confesses only those substantive facts which are well pleaded, and not other distinct substantive facts which might be inferred therefrom by a jury. To treat an averment that the plaintiff&s ancestors were Africans, brought to this country and sold as slaves, as amounting to an averment on the record that he was a slave, because it may lay some foundation for presuming so, is to hold that the facts actually alleged may be treated as intended as evidence of another distinct fact not alleged. But it is a cardinal rule of pleading, laid down in Dowman 's case, (
9 Rep., 9 b,) and in even earlier authorities therein referred to, "that evidence shall never be pleaded, for it only tends to prove matter of fact; and therefore the matter of fact shall be pleaded." Or, as the rule is sometimes stated, pleadings must not be argumentative. (
StephenStephen on Pleading, 384, and authorities cited by him.) In
Com. Dig., Pleader E. 3, and
Bac. Abridgement, Pleas I, 5, and
StephenStephen on PleadingPl., many decisions under this rule are collected. In trover, for an indenture whereby A granted a manor, it is no plea that A did not grant the manor, for it does not answer the declaration except by argument. (Yelv., 223.)
So in trespass for taking and carrying away the plaintiff's goods, the defendant pleaded that the plaintiff never had any goods. The court said, "this is an infallible argument that the defendant is not guilty, but it is no plea." (Dyer, a 43.)
In ejectment, the defendant pleaded a surrender of a copyhold by the hand of , the steward. The plaintiff replied, that was not steward. The court held this no issue, for it traversed the surrender only argumentatively. (Cro. Elis., 260.)
In these cases, and many others reported in the books, the inferences from the facts stated were irresistible. But the court held they did not, when demurred to, amount to such inferable facts. In the case at bar, the inference that the defendant was a slave at the time of action brought, even if it can be made at all, from the fact that his parents were slaves, is certainly not a necessary inference. This case, therefore, is like that of Digby versusv.AlexanderAlexander , (8 Bing., 116.) In that case, the defendant pleaded many facts strongly tending to show that he was once ; but as there was no positive allegation that he was so at the time of action brought, and as every fact averred might be true, and yet the defendant not have been at the time of action brought, the plea was held to be insufficient.
A lawful seizin of land is presumed to continue. But if, in an action of trespass quare clausum, the defendant were to plead that he was lawfully seized of the locus in quo, one month before the time of the alleged trespass, I should have no doubt it would be a bad plea. (See Mollan versusv.Torrance , 9 Wheat., 537.) So if a plea to the jurisdiction, instead of alleging that the plaintiff was a citizen of the same State as the defendant, were to allege that the plaintiff's ancestors were citizens of that State, I think the plea could not be supported. My judgment would be, as it is in this case, that if the defendant meant to aver a particular substantive fact, as existing at the time of action brought, he must do it directly and explicitly, and not by way of inference from certain other averments, which are quite consistent with the contrary hypothesis. I cannot, therefore, treat this plea as containing an averment that the plaintiff himself was a slave at the time of action brought; and the inquiry recurs, whether the facts, that he is of African descent, and that his parents were once slaves, are necessarily inconsistent with his own citizenship in the , within the meaning of the Constitution and laws of the .
In Gassies versusv.Ballon , (6 Pet., 761,) the defendant was described on the record as a naturalized citizen of the , residing in . The court held this equivalent to an averment that the defendant was a citizen of ; because a citizen of the , residing in any State of the Union, is, for purposes of jurisdiction, a citizen of that State. Now, the plea to the jurisdiction in this case does not controvert the fact that the plaintiff resided in at the date of the writ. If he did then reside there, and was also a citizen of the , no provisions contained in the Constitution or laws of can deprive the plaintiff of his right to sue citizens of States other than , in the courts of the .
So that, under the allegations contained in this plea, and admitted by the demurrer, the question is, whether any person of African descent, whose ancestors were sold as slaves in the , can be a citizen of the . If any such person can be a citizen, this plaintiff has the right to the judgment of the court that he is so; for no cause is shown by the plea why he is not so, except his descent and the slavery of his ancestors.
The first section of the second article of the Constitution uses the language, "a citizen of the > at the time of the adoption of the Constitution." One mode of approaching this question is, to inquire who were citizens of the at the time of the adoption of the Constitution.
Citizens of the at the time of the adoption of the Constitution can have been no other than citizens of the under the Confederation. By the Articles of Confederation, a Government was organized, the style whereof was, "The ." This Government was in existence when the Constitution was framed and proposed for adoption, and was to be superseded by the new Government of the , organized under the Constitution. When, therefore, the Constitution speaks of citizenship of the , existing at the time of the adoption of the Constitution, it must necessarily refer to citizenship under the Government which existed prior to and at the time of such adoption.
Without going into any question concerning the powers of the Confederation to govern the territory of the out of the limits of the States, and consequently to sustain the relation of Government and citizen in respeet to the inhabitants of such territory, it may safely be said that the citizens of the several States were citizens of the under the Confederation.
That Government was simply a confederacy of the several States, possessing a few defined powers over subjects of general concern, each State retaining every power, jurisdiction, and right, not expressly delegated to the United StatesUnited States in CongressCongress assembled. And no power was thus delegated to the Government of the Confederation, to act on any question of citizenship, or to make any rules in respect thereto. The whole matter was left to stand upon the action of the several States, and to the natural consequence of such action, that the citizens of each State should be citizens of that Confederacy into which that State had entered, the style whereof was, "The ."
To determine whether any free persons, descended from Africans held in slavery, were citizens of the under the Confederation, and consequently at the time of the adoption of the Constitution of the United StatesUnited States, it is only necessary to know whether any such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.
Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of , , , , and , though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
The Supreme CourtSupreme Court of North CarolinaCarolina , in the case of the State versusv.ManuelManuel , (4 Dev. and Bat., 20,) has declared the law of that State on this subject, in terms which I believe to be a sound law in the other States I have enumerated, as it was in .
"According to the laws of this State," says Judge Gaston in delivering the opinion of the court, "all human beings within it, who are not slaves, fall within one of two classes Whatever distinctions may have existed in the RomanRoman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the , whatever their color or complexion, were native-born British subjectsthose born out of his allegiance were aliens. Slavery did not exist in , but it did in the British colonies. Slaves were not in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of than was consequent on the transition from a colony dependent on a European KingKing , to a free and sovereign State. Slaves remained slaves. British subjects in became freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within , are citizens of , and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised the franchise, until it was taken from free men of color a few years since by our amended Constitution."
In the State versusv.Newcomb , (5 Iredell's R., 253,) decided in 1844, the same court referred to this case of the State versusv.ManuelManuel , and said: "That case underwent a very laborious investigation, both by the bar and the bench. The case was brought here by appeal, and was felt to be one of great importance in principle. It was considered with an anxiety and care worthy of the principle involved, and which give it a controlling influence and authority on all questions of a similar character."
An argument from speculative premises, however well chosen, that the then state of opinion in the was not consistent with the natural rights of people of color who were born on that soil, and that they were not, by the Constitution of 1780 of that State, admitted to the condition of citizens, would be received with surprise by the people of that State, who know their own political history. It is true, beyond all controversy, that persons of color, descended from African slaves, were by that Constitution made citizens of the State; and such of them as have had the necessary qualifications, have held and exercised the elective franchise, as citizens, from that time to the present. (See . versusv.Ayes , 18 Pick. R., 210.)
The Constitution of conferred the elective franchise upon "every inhabitant of the State having the necessary qualifications," of which color or descent was not one.
The Constitution of
gave the right to vote to "every male inhabitant,
who shall have resided," &c.; making no discrimination between free colored
persons and others. (See
ConstitutionCon. of New YorkN. Y., ArticleArt. 2, RevisedRev. StatutesStats. of New YorkN. Y., vol. 1, p. 126.)
That of , to "all inhabitants of this colony, of full age, who are worth Â£50 proclamation money, clear estate."
, by its Constitution of 1820, required colored persons to have some qualifications as prerequisites for voting, which white persons need not possess. And , by its present Constitution, restricts the right to vote to white male citizens. But these changes can have no other effect upon the present inquiry, except to show, that before they were made, no such restrictions existed; and colored in common with white persons, were not only citizens of those States, but entitled to the elective franchise on the same qualifications as white persons, as they now are in and . I shall not enter into an examination of the existing opinions of that period respecting the African race, nor into any discussion concerning the meaning of those who asserted, in the Declaration of Independence, that all men are created equal; that they are endowed by their Creator with certain inalienable rights; that among these are life, liberty, and the pursuit of happiness. My own opinion is, that a calm comparison of these assertions of universal abstract truths, and of their own individual opinions and acts, would not leave these men under any reproach of inconsistency; that the great truths they asserted on that solemn occasion, they were ready and anxious to make effectual, wherever a necessary regard to circumstances, which no statesman can disregard without producing more evil than good, would allow; and that it would not be just to them, nor true in itself, to allege that they intended to say that the Creator of all men had endowed the white race, exclusively, with the great natural rights which the Declaration of Independence asserts. But this is not the place to vindicate their memory. As I conceive, we should deal here, not with such disputes, if there can be a dispute concerning this subject, but with those substantial facts evinced by the written Constitutions of States, and by the notorious practice under them. And they show, in a manner which no argument can obscure, that in some of the original thirteen States, free colored persons, before and at the time of the formation of the Constitution, were citizens of those States.
fourth of the fundamental articles of the Confederation was as follows: "The free inhabitants of each of these States, paupers, vagabonds, and fugitives from justice, excepted, shall be entitled to all the privileges and immunities of free citizens in the several States."
The fact that free persons of color were citizens of some of the several States, and the consequence, that this fourth article of the Confederation would have the effect to confer on such persons the privileges and immunities of general citizenship, were not only known to those who framed and adopted those articles, but the evidence is decisive, that the fourth article was intended to have that effect, and that more restricted language, which would have excluded such persons, was deliberately and purposely rejected.
On the 25th of June, 1778, the Articles of Confederation being under consideration by the CongressCongress , the delegates from moved to amend this fourth article, by inserting after the word "free," and before the word "inhabitants," the word "white," so that the privileges and immunities of general citizenship would be secured only to white persons. Two States voted for the amendment, eight States against it, and the vote of one State was divided. The language of the article stood unchanged, and both by its terms of inclusion, "free inhabitants," and the strong implication from its terms of exclusion, "paupers, vagabonds, and fugitives from justice," who alone were excepted, it is clear, that under the Confederation, and at the time of the adoption of the Constitution, free colored persons of African descent might be, and, by reason of their citizenship in certain States, were entitled to the privileges and immunities of general citizenship of the . Did the Constitution of the United StatesUnited States deprive them or their descendants of citizenship?
That Constitution was ordained and established by the people of the , through the action, in each State, of those persons who were qualified by its laws to act thereon, in behalf of themselves and all other citizens of that State. In some of the States, as we have seen, colored persons were among those qualified by law to act on this subject. These colored persons were not only included in the body of "the people of the ," by whom the Constitution was ordained and established, but in at least five of the States they had the power to act, and doubtless did act, by their suffrages, upon the question of its adoption. It would be strange, if we were to find in that instrument anything which deprived of their citizenship any part of the people of the who were among those by whom it was established.
I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the at the time of its adoption, or who should be native-born citizens of any State after its adoption; nor any power enabling CongressCongress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is, that, under the Constitution of the United StatesUnited States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the .
I will proceed to state the grounds of that opinion.
first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been, in conformity with the common law, that free persons born within either of the colonies were subjects of the KingKing ; that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects. (McIlvain versusv.Coxe's Lessee , 4 CranchCranch , 209; Inglis versusv.Sailors' Snug Harbor , 3 PetersPeters , p. 99; Shanks versusv.Dupont , Ibid, p. 242.)
The Constitution having recognised the rule that persons born within the several States are citizens of the , one of four things must be true:
If there be such a thing as citizenship of the acquired by birth within the States, which the Constitution expressly recognises, and no one denies, then these four alternatives embrace the entire subject, and it only remains to select that one which is true.
That the Constitution itself has defined citizenship of the by declaring what persons, born within the several States, shall or shall not be citizens of the , will not be pretended. It contains no such declaration. We may dismiss the first alternative, as without doubt unfounded.
Has it empowered CongressCongress to enact what free persons, born within the several States, shall or shall not be citizens of the ?
Before examining the various provisions of the Constitution which may relate to this question, it is important to consider for a moment the substantial nature of this inquiry. It is, in effect, whether the Constitution has empowered CongressCongress to create privileged classes within the States, who alone can be entitled to the franchises and powers of citizenship of the . If it be admitted that the Constitution has enabled CongressCongress to declare what free persons, born within the several States, shall be citizens of the United StatesUnited States, it must at the same time be admitted that it is an unlimited power. If this subject is within the control of CongressCongress , it must depend wholly on its discretion. For, certainly, no limits of that discretion can be found in the Constitution, which is wholly silent concerning it; and the necessary consequence is, that the Federal Government may select classes of persons within the several States who alone can be entitled to the political privileges of citizenship of the . If this power exists, what persons born within the States may be President or Vice President of the , or members of either House of CongressCongress , or hold any office or enjoy any privilege whereof citizenship of the is a necessary qualification, must depend solely on the will of CongressCongress . By virtue of it, though CongressCongress can grant no title of nobility, they may create an oligarchy, in whose hands would be concentrated the entire power of the Federal Government.
It is a substantive power, distinct in its nature from all others; capable of affecting not only the relations of the States to the General Government, but of controlling the political condition of the people of the . Certainly we ought to find this power granted by the Constitution, at least by some necessary inference, before we can say it does not remain to the States or the people. I proceed therefore to examine all the provisions of the Constitution which may have some bearing on this subject.
Among the powers expressly granted to CongressCongress is "the power to establish a uniform
rule of naturalization." It is not doubted that this is a power to prescribe a rule for
the removal of the disabilities consequent on foreign birth. To hold that it extends
further than this, would do violence to the meaning of the term naturalization, fixed
in the common law, (
Co. Lit., 8 a, 129 a;
2 Ves., sen., 286;
2 Bl. Com., 293,) and in the minds of those who concurred in framing and adopting the Constitution. It was in this sense of conferring on an alien and his issue the rights and powers of a native-born citizen, that it was employed in the Declaration of Independence. It was in this sense it was expounded in the
Federalist, (No. 42,) has been understood by CongressCongress , by the Judiciary, (2 Wheat., 259, 269; 3 Wash. R., 313, 322; 12 Wheat., 277,) and by commentators on the Constitution. (
Story's CommentariesCom. on ConstitutionCon., 1â3;
1 Rawle on ConstitutionCon., 84â88;
1 Tucker's Bl. Com. App., 255â259.)
It appears, then, that the only power expressly granted to CongressCongress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.
Whether there be anything in the Constitution from which a broader power may be implied, will best be seen when we come to examine the two other alternatives, which are, whether all free persons, born on the soil of the several States, or only such of them as may be citizens of each State, respectively, are thereby citizens of the . The last of these alternatives, in my judgment, contains the truth.
Undoubtedly, as has already been said, it is a principle of public law, recognised by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship. But it must be remembered, that though the Constitution was to form a Government, and under it the were to be one united sovereign nation, to which loyalty and obedience on the one side, and from which protection and privileges on the other, would be due, yet the several sovereign States, whose people were then citizens, were not only to continue in existence, but with powers unimpaired, except so far as they were granted by the people to the National Government.
Among the powers unquestionably possessed by the several States, was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may, well enough for the purpose now in view, be divided into three parts. First: The power to remove the disabilities of alienage, either by special acts in reference to each individual case, or by establishing a rule of naturalization to be administered and applied by the courts. Second: Determining what persons should enjoy the privileges of citizenship, in respect to the internal affairs of the several States. Third: What native-born persons should be citizens of the .
The first-named power, that of establishing a uniform rule of naturalization, was granted; and here the grant, according to its terms, stopped. Construing a Constitution containing only limited and defined powers of government, the argument derived from this definite and restricted power to establish a rule of naturalization, must be admitted to be exceedingly strong. I do not say it is necessarily decisive. It might be controlled by other parts of the Constitution. But when this particular subject of citizenship was under consideration, and, in the clause specially intended to define the extent of power concerning it, we find a particular part of this entire power separated from the residue, and conferred on the General Government, there arises a strong presumption that this is all which is granted, and that the residue is left to the States and to the people. And this presumption is, in my opinion, converted into a certainty, by an examination of all such other clauses of the Constitution as touch this subject.
I will examine each which can have any possible bearing on this question.
first clause of the second section of the third article of the Constitution is, "The judicial power shall extend to controversies between a State and citizens of another State; between citizens of different States; between citizens of the same State, claiming lands under grants of different States; and between States, or the citizens thereof, and foreign States, citizens, or subjects." I do not think this clause has any considerable bearing upon the particular inquiry now under consideration. Its purpose was, to extend the judicial power to those controversies into which local feelings or interests might so enter as to disturb the course of justice, or give rise to suspicions that they had done so, and thus possibly give occasion to jealousy or ill will between different States, or a particular State and a foreign nation. At the same time, I would remark, in passing, that it has never been held, I do not know that it has ever been supposed, that any citizen of a State could bring himself under this clause and
the eleventh and twelfth sections of the judiciary act of 1789, passed in pursuance of it, who was not a citizen of the . But I have referred to the clause, only because it is one of the places where citizenship is mentioned by the Constitution. Whether it is entitled to any weight in this inquiry or not, it refers only to citizenship of the several States; it recognises that; but it does not recognise citizenship of the as something distinct therefrom.
As has been said, the purpose of this clause did not necessarily connect it with citizenship of the , even if that were something distinct from citizenship of the several States, in the contemplation of the Constitution. This cannot be said of other clauses of the Constitution, which I now proceed to refer to.
"The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." Nowhere else in the Constitution is there anything concerning a general citizenship; but here, privileges and immunities to be enjoyed throughout the , under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizenship, how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws of the . They are to be citizens of the several States, and, as such, the privileges and immunities of general citizenship, derived from and guarantied by the Constitution, are to be enjoyed by them. It would seem that if it had been intended to constitute a class of native-born persons within the States, who should derive their citizenship of the from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the .
And if it was intended to secure these rights only to citizens of the , how has the Constitution here described such persons? Simply as citizens of each State.
But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitutions; and the just and Constitutional possession of this right is decisive evidence of citizenship. The provisions made by a Constitution on this subject must therefore be looked to as bearing directly on the question what persons are citizens under that Constitution; and as being decisive, to this extent, that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Government of the , must be deemed citizens of the .
Here, again, the consideration presses itself upon us, that if there was designed to be a particular class of native-born persons within the States, deriving their citizenship from the Constitution and laws of the , they should at least have been referred to as those by whom the President and House of Representatives were to be elected, and to whom they should be responsible.
Instead of that, we again find this subject referred to the laws of the several States. The electors of President are to be appointed in such manner as the Legislature of each State may direct, and the qualifications of electors of members of the House of Representatives shall be the same as for electors of the most numerous branch of the State Legislature.
Laying aside, then, the case of aliens, concerning which the Constitution of the United StatesUnited States has provided, and confining our view to free persons born within the several States, we find that the Constitution has recognised the general principle of public law, that allegiance and citizenship depend on the place of birth; that it has not attempted practically to apply this principle by designating the particular classes of persons who should or should not come under it; that when we turn to the Constitution for an answer to the question, what free persons, born within the several States, are citizens of the , the only answer we can receive from any of its express provisions is, the citizens of the several States are to enjoy the privileges and immunities of citizens in every State, and their franchise as electors under the Constitution depends on their citizenship in the several States. Add to this, that the Constitution was ordained by the citizens of the several States; that they were "the people of the ," for whom and whose posterity the Government was declared in the preamble of the Constitution to be made; that each of them was "a citizen of the at the time of the adoption of the Constitution," within the meaning of those words in that instrument; that by them the Government was to be and was in fact organized; and that no power is conferred on the Government of the Union to discriminate between them, or to disfranchise any of them âthe necessary conclusion is, that those persons born within the several States, who, by force of their respective Constitutions and laws, are citizens of the State, are thereby citizens of the .
It may be proper here to notice some supposed objections to this view of the subject.
It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been Shown that in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its opening declaration, that it was ordained and established by the people of the , for themselves and their posterity. And as free colored persons were then citizens of at least five States, and so in every sense part of the people of the , they were among those for whom and whose posterity the Constitution was ordained and established.
Again, it has been objected, that if the Constitution has left to the several States the rightful power to determine who of their inhabitants shall be citizens of the , the States may make aliens citizens.
The answer is obvious. The Constitution has left to the States the determination what persons, born within their respective limits, shall acquire by birth citizenship of the ; it has not left to them any power to prescribe any rule for the removal of the disabilities of alienage. This power is exclusively in CongressCongress .
It has been further objected, that if free colored persons, born within a
particular State, and made citizens of that State by its Constitution and laws,
are thereby made citizens of the , then, under
the second section of the fourth article of the Constitution, such persons would be entitled to all the privileges and immunities of citizens in the several States; and if so, then colored persons could vote, and be eligible to not only Federal offices, but offices even in those States whose constitutions and laws disqualify colored persons from voting or being elected to office.
But this position rests upon an assumption which I deem untenable. Its basis is, that no one can be deemed a citizen of the who is not entitled to enjoy all the privileges and franchises which are conferred on any citizen. (See 1 Lit. KentuckyKentucky R., 326.) That this is not true, under the Constitution of the United StatesUnited States, seems to me clear.
A naturalized citizen cannot be President of the United StatesUnited States, nor a Senator till after the lapse of nine years, nor a Representative till after the lapse of seven years, from his naturalization. Yet, as soon as naturalized, he is certainly a citizen of the . Nor is any inhabitant of the , or of either of the TerritoriesTerritories, eligible to the office of Senator or Representative in CongressCongress , though they may be citizens of the . So, in all the States, numerous persons, though citizens, cannot vote, or cannot hold office, either on account of their age, or sex, or the want of the necessary legal qualifications. The truth is, that citizenship, under the Constitution of the United StatesUnited States, is not dependent on the possession of any particular political or even of all civil rights; and any attempt so to define it must lead to error. To what citizens the elective franchise shall be confided, is a question to be determined by each State, in accordance with its own views of the necessities or expediencies of its condition. What civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same, or how they may be gained or lost, are to be determined in the same way.
One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the . Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain citizens of a State, by reason of the operation of causes other than mere citizenship, are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office, or the exercise of the elective franchise, citizens of all other States, coming thither to reside, and not possessing those qualifications, cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges, under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity, if it confer it on all of them by reason of mere naked citizenship, then it may be claimed by every citizen of each State by force of the Constitution; and it must be borne in mind, that the difficulties which attend the allowance of the claims of colored persons to be citizens of the are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the , because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they become, as such, entitled to the benefits of this article, if there be a native-born citizenship of the distinct from a native-born citizenship of the several States.
There is one view of this article entitled to consideration in this connection. It is manifestly copied from the fourth of the Articles of Confederation, with only slight changes of phraseology, which render its meaning more precise, and dropping the clause which excluded paupers, vagabonds, and fugitives from justice, probably because these cases could be dealt with under the police powers of the States, and a special provision therefor was not necessary. It has been suggested, that in adopting it into the Constitution, the words "free inhabitants" were changed for the word "citizens." An examination of the forms of expression commonly used in the State papers of that day, and an attention to the substance of this article of the Confederation, will show that the words "free inhabitants," as then used, were synonymous with citizens. When the Articles of Confederation were adopted, we were in the midst of the war of the Revolution, and there were very few persons then embraced in the words "free inhabitants," who were not born on our soil. It was not a time when many, save the children of the soil, were willing to embark their fortunes in our cause; and though there might be an inaccuracy in the uses of words to call free inhabitants citizens, it was then a technical rather than a substantial difference. If we look into the Constitutions and State papers of that period, we find the inhabitants or people of these colonies, or the inhabitants of this State, or Commonwealth, employed to designate those whom we should now denominate citizens. The substance and purpose of the article prove it was in this sense it used these words: it secures to the free inhabitants of each State the privileges and immunities of free citizens in every State. It is not conceivable that the States should have agreed to extend the privileges of citizenship to persons not entitled to enjoy the privileges of citizens in the States where they dwelt; that under this article there was a class of persons in some of the States, not citizens, to whom were secured all the privileges and immunities of citizens when they went into other States; and the just conclusion is, that though the Constitution cured an inaccuracy of language, it left the substance of this article in the National Constitution the same as it was in the Articles of Confederation.
The history of this fourth article, respecting the attempt to exclude free
persons of color from its operation, has been already stated. It is reasonable
to conclude that this history was known to those who framed and adopted the
Constitution. That under this
fourth article of the Confederation, free persons of color might be entitled to the privileges of general citizenship, if otherwise entitled thereto, is clear. When this article was, in substance, placed in and made part of the Constitution of the United StatesUnited States, with no change in its language calculated to exclude free colored persons from the benefit of its provisions, the presumption is, to say the least, strong, that the practical effect which it was designed to have, and did have, under the former Government, it was designed to have, and should have, under the new Government.
It may be further objected, that if free colored persons may be citizens of the , it depends only on the will of a master whether he will emancipate his slave, and thereby make him a citizen. Not so. The master is subject to the will of the State. Whether he shall be allowed to emancipate his slave at all; if so, on what conditions; and what is to be the political status of the freed man, depend, not on the will of the master, but on the will of the State, upon which the political status of all its native-born inhabitants depends. Under the Constitution of the United StatesUnited States, each State has retained this power of determining the political status of its native-born inhabitants, and no exception thereto can be found in the Constitution. And if a master in a slaveholding State should carry his slave into a free State, and there emancipate him, he would not thereby make him a native-born citizen of that State, and consequently no privileges could be claimed by such emancipated slave as a citizen of the United StatesUnited States. For, whatever powers the States may exercise to confer privileges of citizenship on persons not born on their soil, the Constitution of the United StatesUnited States does not recognise such citizens. As has already been said, it recognises the great principle of public law, that allegiance and citizenship spring from the place of birth. It leaves to the States the application of that principle to individual cases. It secured to the citizens of each State the privileges and immunities of citizens in every other State. But it does not allow to the States the power to make aliens citizens, or permit one State to take persons born on the soil of another State, and, contrary to the laws and policy of the State where they were born, make them its citizens, and so citizens of the . No such deviation from the great rule of public law was contemplated by the Constitution; and when any such attempt shall be actually made, it is to be met by applying to it those rules of law and those principles of good faith which will be sufficient to decide it, and not, in my judgment, by denying that all the free native-born inhabitants of a State, who are its citizens under its Constitution and laws, are also citizens of the .
It has sometimes been urged that colored persons are shown not to be citizens
of the by the fact that the naturalization laws apply only to
white persons. But whether a person born in the be or be not a
citizen, cannot depend on laws which refer only to aliens, and do not affect the
status of persons born in the . The utmost
effect which can be attributed to them is, to show that CongressCongress has not
deemed it expedient generally to apply the rule to colored aliens. That
they might do so, if thought fit, is clear. The Constitution has not
excluded them. And since that has conferred the power on CongressCongress to
naturalize colored aliens, it certainly shows color is not a necessary
qualification for citizenship under the Constitution of the United StatesUnited States.
It may be added, that the power to make colored persons citizens of the
, under the Constitution, has been actually exercised in repeated
and important instances. (See the
Treaties with the Choctaws, of September 27, 1830, art. 14;
with the Cherokees, of May 23, 1836, art. 12;
Treaty of Guadalupe Hidalgo, February 2, 1848, art. 8.)
I do not deem it necessary to review at length the legislation
of CongressCongress having more or less bearing on the citizenship of colored persons. It
does not seem to me to have any considerable tendency to prove that it has been
considered by the legislative department of the Government, that no such persons
are citizens of the . Undoubtedly they have been debarred from the
exercise of particular rights or privileges extended to white persons, but, I believe,
always in terms which, by implication, admit they may be citizens. Thus
the act of May 17, 1792, for the organization of the militia, directs the enrolment of "every free, able-bodied, white male citizen." An assumption that none but white persons are citizens, would be as inconsistent with the just import of this language, as that all citizens are able-bodied, or males.
the act of February 28, 1803, (2 Stat. at Large, 205,) to prevent the importation of certain persons into States, when by the laws thereof their admission is prohibited, in its first section forbids all masters of vessels to import or bring "any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the ," &c.
acts of March 3, 1813, section 1, (2 Stat. at Large, 809,) and
March 1, 1817, section 3, (3 Stat. at Large, 351,) concerning seamen, certainly imply there may be persons of color, natives of the , who are not citizens of the . This implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizenship of persons of color in others of the States, nor with their being citizens of the .
Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to this subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification of citizenship. It would be strange, if laws were found on our statute book to that effect, when, by solemn treaties, large bodies of Mexican and North American Indians as well as free colored inhabitants of LouisianaLouisiana have been admitted to citizenship of the .
In the legislative debates which preceded the admission of the into the Union, this question was agitated. Its result is found in
the resolution of Congress , of March 5, 1821, for the admission of that State into the Union. The Constitution of MissouriMissouri, under which that State applied for admission into the Union, provided, that it should be the duty of the Legislature "to pass laws to prevent free negroes and mulattoes from coming to and settling in the State, under any pretext whatever." One ground of objection to the admission of the State under this Constitution was, that it would require the Legislature to exclude free persons of color, who would be entitled, under
the second section of the fourth article of the Constitution, not only to come within the State, but to enjoy there the privileges and immunities of citizens. The resolution of CongressCongress admitting the State was upon the fundamental condition, "that the Constitution of MissouriMissouri shall never be construed to authorize the passage of any law, and that no law shall be passed in conformity thereto, by which any citizen of either of the States of this Union shall be excluded from the enjoyment of any of the privileges and immunities to which such citizen is entitled under the Constitution of the United StatesUnited States." It is true, that neither this legislative declaration, nor anything in the Constitution or laws of , could confer or take away any privilege or immunity granted by the Constitution. But it is also true, that it expresses the then conviction of the legislative power of the , that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States.
The conclusions at which I have arrived on this part of the case are:
I dissent, therefore, from that part of the opinion of the majority of the court, in which it is held that a person of African descent cannot be a citizen of the ; and I regret I must go further, and dissent both from what I deem their assumption of authority to examine the Constitutionality of the act of CongressCongress commonly called the MissouriMissouri compromise act, and the grounds and conclusions announced in their opinion.
Having first decided that they were bound to consider the sufficiency of the plea to the jurisdiction of the Circuit CourtCircuit Court , and having decided that this plea showed that the Circuit CourtCircuit Court had not jurisdiction, and consequently that this is a case to which the judicial power of the does not extend, they have gone on to examine the merits of the case as they appeared on the trial before the court and jury, on the issues joined on the pleas in bar, and so have reached the question of the power of CongressCongress to pass the act of 1820. On so grave a subject as this, I feel obliged to say that, in my opinion, such an exertion of judicial power transcends the limits of the authority of the court, as described by its repeated decisions, and, as I understand, acknowledged in this opinion of the majority of the court.
In the course of that opinion, it became necessary to comment on the case of LegrandLegrand versusv.DarnallDarnall , (reported in 2 Peters's R., 664.) In that case, a bill was filed, by one alleged to be a citizen of , against one alleged to be a citizen of . The bill stated that the defendant was the son of a white man by one of his slaves; and that the defendant's father devised to him certain lands, the title to which was put in controversy by the bill. These facts were admitted in the answer, and upon these and other facts the court made its decree, founded on the principle that a devise of land by a master to a slave was by implication also a bequest of his freedom. The facts that the defendant was of African descent, and was born a slave, were not only before the court, but entered into the entire substance of its inquiries. The opinion of the majority of my brethren in this case disposes of the case of LegrandLegrand versusv.DarnallDarnall , by saying, among other things, that as the fact that the defendant was born a slave only came before this court on the bill and answer, it was then too late to raise the question of the personal disability of the party, and therefore that decision is altogether inapplicable in this case.
In this I concur. Since the decision of this court in LivingstonLivingston versusv.Story , (11 Pet., 351,) the law has been settled, that when the declaration or bill contains the necessary averments of citizenship, this court cannot look at the record, to see whether those averments are true, except so far as they are put in issue by a plea to the jurisdiction. In that case, the defendant denied by his answer that Mr. LivingstonLivingston was a citizen of , as he had alleged in the bill. Both parties went into proofs. The court refused to examine those proofs, with reference to the personal disability of the plaintiff. This is the settled law of the court, affirmed so lately as Shepherd versusv.Graves , (14 How., 27,) and Wickliff versusv.OwingsOwings , (17 How., 51.) (See also De Wolf versusv.Rabaud , 1 Pet., 476.) But I do not understand this to be a rule which the court may depart from at its pleasure. If it be a rule, it is as binding on the court as on the suitors. If it removes from the latter the power to take any objection to the personal disability of a party alleged by the record to be competent, which is not shown by a plea to the jurisdiction, it is because the court are forbidden by law to consider and decide on objections so taken. I do not consider it to be within the scope of the judicial power of the majority of the court to pass upon any question respecting the plaintiff's citizenship in , save that raised by the plea to the jurisdiction; and I do not hold any opinion of this court, or any court, binding, when expressed on a question not legitimately before it. (CarrollCarroll versusv.CarrollCarroll , 16 How., 275.) The judgment of this court is, that the case is to be dismissed for want of jurisdiction, because the plaintiff was not a citizen of , as he alleged in his declaration. Into that judgment, according to the settled course of this court, nothing appearing after a plea to the merits can enter. A great question of constitutional law, deeply affecting the peace and welfare of the country, is not, in my opinion, a fit subject to be thus reached.
But as, in my opinion, the Circuit CourtCircuit Court had jurisdiction, I am obliged to consider the question whether its judgment on the merits of the case should stand or be reversed.
The residence of the plaintiff in the , and the residence of himself and his wife in the territory acquired from lying , are each relied on by the plaintiff in error. As the residence in the terrirory affects the plaintiff's wife and children as well as himself, I must inquire what was its effect.
The general question may be stated to be, whether the plaintiff's status, as a slave, was so changed by his residence within that territory, that he was not a slave in the , at the time this action was brought.
In such cases, two inquiries arise, which may be confounded, but should be kept distinct.
The first is, what was the law of the Territory into which the master and slave went, respecting the relation between them?
The second is, whether the recognises and allows the effect of that law of the Territory, on the status of the slave, on his return within its jurisdiction.
As to the first of these questions, the will of States and nations, by whose municipal law slavery is not recognised, has been manifested in three different ways.
One is, absolutely to dissolve the relation, and terminate the rights of the master existing under the law of the country whence the parties came. This is said by Lord StowellStowell , in the case of the slave Grace , (2 Hag. Ad. R., 94,) and by the Supreme CourtSupreme Court of LouisianaLouisiana in the case of MariaMaria LouiseLouise versusv.Marot , (9 Louis. R., 473,) to be the law of ; and it has been the law of several States of this Union, in respect to slaves introduced under certain conditions. (WilsonWilson versusv.IsabelIsabel , 5 Call's R., 430; HunterHunter versusv.Hulcher , 1 Leigh, 172; StewartStewart versusv.Oaks , 5 Har. and John., 107.)
The second is, where the municipal law of a country not recognising slavery, it is the will of the State to refuse the master all aid to exercise any control over his slave; and if he attempt to do so, in a manner justifiable only by that relation, to prevent the exercise of that control. But no law exists, designed to operate directly on the relation of master and slave, and put an end to that relation. This is said by Lord StowellStowell , in the case above mentioned, to be the law of , and by Mr. Chief Justice ShawShaw , in the case of the Commonwealth versusv.Aves , (18 Pick., 193,) to be the law of .
The third is, to make a distinction between the case of a master and his slave only temporarily in the country, animo non manendi, and those who are there to reside for permanent or indefinite purposes. This is said by Mr. to be the law of , and was formerly the statute law of several States of our Union. It is necessary in this case to keep in view this distinction between those countries whose laws are designed to act directly on the status of a slave, and make him a freeman, and those where his master can obtain no aid from the laws to enforce his rights.
It is to the last case only that the authorities, out of , relied on by defendant, apply, when the residence in the non-slaveholding Territory was permanent. In the Commonwealth versusv.Aves , (18 Pick., 218,) Mr. Chief Justice ShawShaw said: "From the principle above stated, on which a slave brought here becomes free, to wit: that he becomes entitled to the protection of our laws, it would seem to follow, as a necessary conclusion, that if the slave waives the protection of those laws, and returns to the State where he is held as a slave, his condition is not changed." It was upon this ground, as is apparent from his whole reasoning, that Sir rests his opinion in the case of the slave Grace . To use one of his expressions, the effect of the law of was to put the liberty of the slave into a parenthesis. If there had been an act of Parliament declaring that a slave coming to with his master should thereby be deemed no longer to be a slave, it is easy to see that the learned judge could not have arrived at the same conclusion. This distinction is very clearly stated and shown by President TuckerTucker , in his opinion in the case of Betty versusv.Horton , (5 Leigh's VirginiaVirginia R ., 615.) (See also HunterHunter versusv.Fletcher , 1 Leigh's Va. R., 172; MariaMaria LouiseLouise versusv.Marot , 9 LouisianaLouisiana R.; Smith versusv.SmithSmith , 13 Ib., 441; ThomasThomas versusv.Genevieve , 16 Ib., 483; Rankin versusv.LydiaLydia , 2 A. K. Marshall, 467; Davies versusv.Tingle , 8 B. Munroe, 539; Griffeth versusv.Fanny , Gilm. Va. R., 143; Lumford versusv.Coquillon , 14 Martin's La. R., 405; JosephineJosephine versusv.Poultney , 1 Louis. Ann. R., 329.)
But if the acts of CongressCongress on this subject are valid, the law of the Territory of ,
within whose limits the residence of the plaintiff and his wife, and their marriage and the birth
of one or both of their children, took place, falls under the first category, and is a law
operating directly on the status of the slave. By
the eighth section of the act of March 6, 1820, (3 Stat. at Large, 548,) it was enacted that, within this Territory, "slavery and involuntary servitude, otherwise than in the punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby, forever prohibited: Provided, always, that any person escaping into the same, from whom labor or service is lawfully claimed in any State or Territory of the United StatesUnited States, such fugitive may be lawfully reclaimed, and conveyed to the person claiming his or her labor or service, as aforesaid."
the act of April 20, 1836, (4 Stat. at Large, 10,) passed in the same month and year of the removal of the plaintiff to , this part of the territory ceded by , where is, together with so much of , was brought under a Territorial Government, under the name of the Territory of . 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 , 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 , the laws of the , and the then existing laws of the , are extended over the Territory; the latter being subject to alteration and repeal by the legislative power of the Territory created by the act.
was within the Territory of , 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 , 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 and the laws of 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 CongressCongress , not only was a general system of municipal law borrowed from the , 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 CongressCongress that the state of involuntary servitude of a slave, coming into the Territory with his master, should cease to exist. The Supreme Court of MissouriSupreme Court of Missouri so held in RachelRachel versusv.WalkerWalker , (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 recognised and allowed effect to the change wrought in the status of the plaintiff, by force of the laws of the Territory of .
I say the law of , 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 mainfested 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 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 bearing on this question. The customary law of is the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And the common law, as 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 .
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 .
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 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 CourtCircuit 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 CourtCircuit 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. EmersonEmerson , the plaintiff's master, resided about two years at the military post of , being a surgeon in the army of the , his domicil of origin being unknown; and what, if anything, he had done, to preserve or change his domicil prior to his residence at , 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 Goverment 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 versusv.Bruce , 2 Bos. and Pul., 230; Munroe versusv.Douglass , 5 Mad. Ch. R., 232.) This being so, this case stands thus: there was evidence before the jury that EmersonEmerson resided about two years at , in the Territory of . 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 versusv.SmithSmith , (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 versusv.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 EmersonEmerson had not his technical domicil at . 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. EmersonEmerson .
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 , 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. EmersonEmerson , as a slave, from to the , and thence to the Territory of , 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. EmersonEmerson 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. EmersonEmerson was an officer in the army of the . He went into the Territory to discharge his duty to the . The place was out of the jurisdiction of any particular State, and within the exclusive jurisdiction of the . It does not appear where the domicil of origin of Dr. EmersonEmerson 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 , Constitutionally enacted by CongressCongress for the government of the Territory, rightfully extended over an officer of the 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. EmersonEmerson 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 could, by laws Constitutionally enacted, govern their own servants, residing on their own Territory, over which the 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 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. EmersonEmerson , to HarrietHarriet , named in the declaration as his wife, and that ElizaEliza and LizzieLizzie were the children of that marriage, the first named having been born on , and the other having been born after their return to . And the inquiry is, whether, after the marriage of the plaintiff in the Territory, with the consent of Dr. EmersonEmerson , 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 as a slave, and Dr. EmersonEmerson 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 CongressCongress governing the Territory of 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 and ,
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 MarriageMar. and DivorceDiv., 125â129, where the cases are collected.)
If, in , 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 , 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 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 , 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. EmersonEmerson 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 . 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. (LegrandLegrand versusv.DarnallDarnall , 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 assumeâa 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. EmersonEmerson , 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 , which should thus annul a marriage, lawfully contracted by these parties while resident in , not in fraud of any law of , or of any right of Dr. EmersonEmerson , who consented thereto, would be a law impairing the obligation of a contract, and within the prohibition of the Constitution of the United StatesUnited 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:
But it is insisted that the Supreme Court of MissouriSupreme Court of Missouri has settled this case by its decision in ScottScott versusv.EmersonEmerson , (15 MissouriMissouri Reports, 576;) and that this decision is in conformity with the weight of authority elsewhere, and with sound principles. If the Supreme Court of MissouriSupreme Court of Missouri had placed its decision on the ground that it appeared Dr. EmersonEmerson 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 , and that the plaintiff was lawfully married there, with Dr. EmersonEmerson '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. EmersonEmerson in that Territory is not questioned in that decision; and it is placed on a broad denial of the operation, in , of the law of any foreign State or country upon the status of a slave, going with his master from 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 GambleArchibald 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." (WinneyWinney versusv.WhitesidesWhitesides , 1 Mo., 473; Le Grange versusv.ChouteauChouteau , 2 Mo., 20; MilleyMilley versusv.SmithSmith , Ib., 36; RalphRalph versusv.DuncanDuncan , 3 Mo., 194; JuliaJulia versusv.McKinneyMcKinney , Ib., 270; NatNat versusv.Ruddle , Ib., 400; RachelRachel versusv.WalkerWalker , 4 Mo., 350; WilsonWilson versusv.Melvin , 592.)
Chief Justice GambleArchibald 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 MissouriSupreme 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 were in operation in the Territory of , and what was their effect on the status of the plaintiff. Could the plaintiff contract a lawful marriage there? Does any law of the 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 , this court, under the Constitution and laws of the , 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 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 , to be recognized in . 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 versusv.Tyson , 16 Peters's R., 1; CarpenterCarpenter versusv.The Providence . ., Ib., 495; Foxcroft versusv.Mallet , 4 How., 353; Rowan versusv.Runnels , 5 How., 134.)
Some reliance has been placed on the fact that the decision in the Supreme Court of MissouriSupreme Court of Missouri was between these parties, and the suit there was abandoned to obtain another trial in the courts of the .
In Homer versusv.BrownBrown , (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-matterthe claimant having become nonsuit in the State court, in order to bring his action in the Circuit Court of the United StatesUnited 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 versusv.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 . The Supreme CourtSupreme 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 StatesUnited States. The decision of the Supreme CourtSupreme Court of the State, reported in 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 versusv.Knoop , 16 How., 369; Pease versusv.Peck , 18 How., 599.)
To these considerations I desire to add, that it was not made known to the Supreme Court of MissouriSupreme Court of Missouri , so far as appears, that the plaintiff was married in with the consent of Dr. EmersonEmerson , and it is not made known to us that Dr. EmersonEmerson was a citizen of , 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 MissouriMissouri Reports.
I have thus far assumed, merely for the purpose of the argument, that the laws of the , respecting slavery in this Territory, were constitutionally enacted by CongressCongress . 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 CongressCongress over the territory belonging to the . 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 as a Territory. That whatever power of this kind exists, is derived by implication from the capacity of the 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 CongressCongress to organize and govern TerritoriesTerritories, 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 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 , 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 to the Confederation, but at one time seriously threatened its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of these circumstances, CongressCongress earnestly recommended to the several States a cession of their claims and rights to the . (5 Jour. of Cong., 442.) And before the Constitution was framed, it had been begun. That by had been made on the 1st day of March, 1781; that of on the 1st day of March, 1784; that of on the 19th day of April, 1785; that of on the 14th day of September, 1786; that of 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 , 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 , 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 and to cede their extensive and valuable claims. These were made, by on the 25th day of February, 1790, and by 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 StatesUnited 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 to that unsettled territory were of different kinds. The titles of the States of , , , , and , as well of soil as of jurisdiction, had been transferred to the . and 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 OhioOhio.
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 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 CongressCongress , and depending for its vitality upon the continuance of that legislative power. But the officers to be appointed for the , after the adoption of the Constitution, must necessarily be officers of the , and not of the Congress of the Confederation; appointed and commissioned by the President, and exercising powers derived from the under the Constitution.
Such was the relation between the and the , 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 was not the only territory, the soil and jurisdiction whereof were then understood to have been ceded to the . The cession by , made in August, 1787, was of "all ."
It is true that by subsequent explorations it was ascertained that the source of the , upon which the title of 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 to the southern boundary of . But this was a discovery made long after the cession, and there can be no doubt that the State of , in making the cession, and the CongressCongress in accepting it, viewed it as a transfer to the of the soil and jurisdiction of an extensive and important part of the unsettled territory ceded by the Crown of by the treaty of peace, though its quantity or extent then remained to be ascertained. *
[inlineauthdsc105_5[Note: * Note by Mr. Justice CurtisCurtis . This statement that some territory did actually pass by this cession, is taken from the opinion of the court, delivered by Mr. Justice , in the case of versusv., 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 and would complete the plan already so far executed by , , , , and , 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 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
. The proof is direct and decisive, that it was known to the Convention.
* 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.)
[inlineauthdsc105_6[Note: * It was published in a newspaper at ,
in May, and a copy of it was sent by to , on the 15th of July.
p. 261, Cor. of Am. Rev., vol. 4, and
Writings of WashingtonWashington, 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. , on the 29th of May, was one on this subject, (Res. No. 10, 5 ElliotElliot , 128,) which, having been affirmed in Committee of the Whole, on the 5th of June, (5 ElliotElliot , 156,) and reported to the Convention on the 13th of June, (5 ElliotElliot , 190,) was referred to the Committee of Detail, to prepare the Constitution, on the 26th of July, (5 ElliotElliot , 376.) This committee reported an article for the admission of new States "lawfully constituted or established." Nothing was said concerning the power of CongressCongress to prepare or form such States. This omission struck Mr. , who, on the 18th of August, (5 ElliotElliot , 439,) moved for the insertion of power to dispose of the unappropriated lands of the , and to institute temporary Governments for new States arising therein.
On the 29th of August, (5 ElliotElliot , 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 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 CongressCongress 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 CongressCongress .
"The CongressCongress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the ; and nothing in this Constitution shall be so construed as to prejudice any claims of the or any particular State."
That CongressCongress 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 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 CongressCongress 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 MarshallMarshall (in United StatesUnited States versusv.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 held a great tract of country northwest of the OhioOhio; another tract, then of unknown extent, ceded by ; 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 and . These ceded tracts lay within the limits of the , 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.
These words, "territory belonging to the ," were not used in the Constitution to describe an abstraction, but to identify and apply to these actual subjects matter then existing and belonging to the , and other similar subjects which might afterwards be acquired; and this being so, all the essential qualities and incidents attending such actual subjects are embraced within the words "territory belonging to the ," as fully as if each of those essential qualities and incidents had been specifically described.
I say, the essential qualities and incidents. But in determining what were the essential qualities and incidents of the subject with which they were dealing, we must take into consideration not only all the particular facts which were immediately before them, but the great consideration, ever present to the minds of those who framed and adopted the Constitution, that they were making a frame of government for the people of the and their posterity, under which they hoped the might be, what they have now become, a great and powerful nation, possessing the power to make war and to conclude treaties, and thus to acquire territory. (See CerrÈ³CerrÈ³ versusv.Pitot , 6 Cr., 336; . . . versusv.Canter , 1 Pet., 542.) With these in view, I turn to examine the clause of the article now in question.
It is said this provision has no application to any territory save that then belonging to the . I have already shown that, when the Constitution was framed, a confident expectation was entertained, which was speedily realized, that and would cede their claims to that great territory which lay west of those States. No doubt has been suggested that the first clause of this same article, which enabled CongressCongress to admit new States, refers to and includes new States to be formed out of this territory, expected to be thereafter ceded by and , as well as new States to be formed out of territory northwest of the OhioOhio, which then had been ceded by . It must have been seen, therefore, that the same necessity would exist for an authority to dispose of and make all needful regulations respecting this territory, when ceded, as existed for a like authority respecting territory which had been ceded.
No reason has been suggested why any reluctance should have been felt, by the framers of the Constitution, to apply this provision to all the territory which might belong to the , or why any distinction should have been made, founded on the accidental circumstance of the dates of the cessions; a circumstance in no way material as respects the necessity for rules and regulations, or the propriety of conferring on the CongressCongress power to make them. And if we look at the course of the debates in the Convention on this article, we shall find that the then unceded lands, so far from having been left out of view in adopting this article, constituted, in the minds of members, a subject of even paramount importance.
Again, in what an extraordinary position would the limitation of this clause to territory then belonging to the , place the territory which lay within the chartered limits of and . The title to that territory was then claimed by those States, and by the ; their respective claims are purposely left unsettled by the express words of this clause; and when cessions were made by those States, they were merely of their claims to this territory, the neither admitting nor denying the validity of those claims; so that it was impossible then, and has ever since remained impossible, to know whether this territory did or did not then belong to the ; and, consequently, to know whether it was within or without the authority conferred by this clause, to dispose of and make rules and regulations respecting the territory of the . This attributes to the eminent men who acted on this subject a want of ability and forecast, or a want of attention to the known facts upon which they were acting, in which I cannot concur.
There is not, in my judgment, anything in the language, the history, or the subject-matter of this article, which restricts its operation to territory owned by the when the Constitution was adopted.
But it is also insisted that provisions of the Constitution respecting territory belonging to the do not apply to territory acquired by treaty from a foreign nation. This objection must rest upon the position that the Constitution did not authorize the Federal Government to acquire foreign territory, and consequently has made no provision for its government when acquired; or, that though the acquisition of foreign territory was contemplated by the Constitution, its provisions concerning the admission of new States, and the making of all needful rules and regulations respecting territory belonging to the , were not designed to be applicable to territory acquired from foreign nations.
It is undoubtedly true, that at the date of the treaty of 1803, between the and , for the cession of , it was made a question, whether the Constitution had conferred on the executive department of the Government of the power to acquire foreign territory by a treaty.
There is evidence that very grave doubts were then entertained concerning the existence of this power. But that there was then a settled opinion in the executive and legislative branches of the Government, that this power did not exist, cannot be admitted, without at the same time imputing to those who negotiated and ratified the treaty, and passed the laws necessary to carry it into execution, a deliberate and known violation of their oaths to support the Constitution; and whatever doubts may then have existed, the question must now be taken to have been settled. Four distinct acquisitions of foreign territory have been made by as many different treaties, under as many different Administrations. Six States, formed on such territory, are now in the Union. Every branch of this Government, during a period of more than fifty years, has participated in these transactions. To question their validity now, is vain. As was said by Mr. Chief Justice MarshallMarshall , in the American Insurance Company versusv.Canter , (1 PetersPeters , 542,) "the Constitution confers absolutely on the Government of the Union the powers of making war and of making treaties; consequently, that Government possesses the power of acquiring territory, either by conquest or treaty." (See CerrÈ³CerrÈ³ versusv.Pitot , 6 Cr., 336.) And I add, it also possesses the power of governing it, when acquired, not by resorting to supposititious powers, nowhere found described in the Constitution, but expressly granted in the authority to make all needful rules and regulations respecting the territory of the .
There was to be established by the Constitution a frame of government, under which the people of the and their posterity were to continue indefinitely. To take one of its provisions, the language of which is broad enough to extend throughout the existence of the Government, and embrace all territory belonging to the throughout all time, and the purposes and objects of which apply to all territory of the , and narrow it down to territory belonging to the when the Constitution was framed, while at the same time it is admitted that the Constitution contemplated and authorized the acquisition, from time to time, of other and foreign territory, seems to me to be an interpretation as inconsistent with the nature and purposes of the instrument, as it is with its language, and I can have no hesitation in rejecting it.
I construe this clause, therefore, as if it had read, CongressCongress shall have power to make all needful rules and regulations respecting those tracts of country, out of the limits of the several States, which the have acquired, or may hereafter acquire, by cessions, as well of the jurisdiction as of the soil, so far as the soil may be the property of the party making the cession, at the time of making it.
It has been urged that the words "rules and regulations" are not appropriate terms in which to convey authority to make laws for the government of the territory.
But it must be remembered that this is a grant of power to the CongressCongress âthat it is therefore necessarily a grant of power to legislateâand, certainly, rules and regulations respecting a particular subject, made by the legislative power of a country, can be nothing but laws. Nor do the particular terms employed, in my judgment, tend in any degree to restrict this legislative power. Power granted to a Legislature to make all needful rules and regulations respecting the territory, is a power to pass all needful laws respecting it.
The word regulate, or regulation, is several times used in the Constitution. It is used in the
fourth section of the first article to describe those laws of the States which prescribe the times,
places, and manner, of choosing Senators and Representatives; in
the second section of the fourth article, to designate the legislative action of a State on the subject of fugitives from service, having a very close relation to the matter of our present inquiry; in the second section of the third article, to empower CongressCongress to fix the extent of the appellate jurisdiction of this court; and, finally, in
the eighth section of the first article are the words, "CongressCongress shall have power to regulate commerce."
It is unnecessary to describe the body of legislation which has been enacted under this grant of power; its variety and extent are well known. But it may be mentioned, in passing, that under this power to regulate commerce, CongressCongress has enacted a great system of municipal laws, and extended it over the vessels and crews of the United StatesUnited States on the high seas and in foreign ports, and even over citizens of the resident in ; and has established judicatures, with power to inflict even capital punishment within that country.
If, then, this clause does contain a power to legislate respecting the territory, what are the limits of that power?
To this I answer, that, in common with all the other legislative powers of CongressCongress , it finds limits in the express prohibitions on CongressCongress not to do certain things; that, in the exercise of the legislative power, CongressCongress cannot pass an ex post facto law or bill of attainder; and so in respect to each of the other prohibitions contained in the Constitution.
Besides this, the rules and regulations must be needful. But undoubtedly the question whether a particular rule or regulation be needful, must be finally determined by CongressCongress itself. Whether a law be needful, is a legislative or political, not a judicial, question. Whatever CongressCongress deems needful is so, under the grant of power.
Nor am I aware that it has ever been questioned that laws providing for the temporary government of the settlers on the public lands are needful, not only to prepare them for admission to the Union as States, but even to enable the United StatesUnited States to dispose of the lands.
Without government and social order, there can be no property; for without law, its ownership, its use, and the power of disposing of it, cease to exist, in the sense in which those words are used and understood in all civilized States.
Since, then, this power was manifestly conferred to enable the to dispose of its public lands to settlers, and to admit them into the Union as States, when in the judgment of CongressCongress they should be fitted therefor, since these were the needs provided for, since it is confessed that Government is indispensable to provide for those needs, and the power is, to make all needful rules and regulations respecting the territory, I cannot doubt that this is a power to govern the inhabitants of the territory, by such laws as CongressCongress deems needful, until they obtain admission as States.
Whether they should be thus governed solely by laws enacted by CongressCongress , or partly by laws enacted by legislative power conferred by CongressCongress , is one of those questions which depend on the judgment of CongressCongress âa question which of these is needful.
But it is insisted, that whatever other powers CongressCongress may have respecting the territory of the , the subject of negro slavery forms an exception.
The Constitution declares that CongressCongress shall have power to make "all needful rules and regulations" respecting the territory belonging to the .
The assertion is, though the Constitution says all, it does not mean allâthough it says all, withont qualification, it means all except such as allow or prohibit slavery. It cannot be doubted that it is incumbent on those who would thus introduce an exception not found in the language of the instrument, to exhibit some solid and satisfactory reason, drawn from the subject-matter or the purposes and objects of the clause, the context, or from other provisions of the Constitution, showing that the words employed in this clause are not to be understood according to their clear, plain, and natural signification.
The subject-matter is the territory of the United StatesUnited States out of the limits of every State, and consequently under the exclusive power of the people of the . Their will respecting it, manifested in the Constitution, can be subject to no restriction. The purposes and objects of the clause were the enactment of laws concerning the disposal of the public lands, and the temporary government of the settlers thereon until new States should be formed. It will not be questioned that, when the Constitution of the United StatesUnited States was framed and adopted, the allowance and the prohibition of negro slavery were recognised subjects of municipal legislation; every State had in some measure acted thereon; and the only legislative act concerning the territoryâthe ordinance of 1787, which had then so recently been passedâcontained a prohibition of slavery. The purpose and object of the clause being to enable CongressCongress to provide a body of municipal law for the government of the settlers, the allowance or the prohibition of slavery comes within the known and recognised scope of that purpose and object.
There is nothing in the context which qualifies the grant of power. The regulations must be "respecting the territory." An enactment that slavery may or may not exist there, is a regulation respecting the territory. Regulations must be needful; but it is necessarily left to the legislative discretion to determine whether a law be needful. No other clause of the Constitution has been referred to at the bar, or has been seen by me, which imposes any restriction or makes any exception concerning the power of CongressCongress to allow or prohibit slavery in the territory belonging to the .
A practical construction, nearly contemporaneous with the adoption of the Constitution, and continued by repeated instances through a long series of years, may always influence, and in doubtful cases should determine, the judicial mind, on a question of the interpretation of the Constitution. (StuartStuart versusv.Laird , 1 CranchCranch , 269; MartinMartin versusv.HunterHunter , 1 Wheat., 304; Cohens versusv. VirginiaVirginia , 6 Wheat., 264; Prigg versusv. PennsylvaniaPennsylvania , 16 Pet., 621; Cooley versusv.Port Wardens , 12 How., 315.)
In this view, I proceed briefly to examine the practical construction placed on the clause now in question, so far as it respects the inclusion therein of power to permit or prohibit slavery in the TerritoriesTerritories.
It has already been stated, that after the Government of the was organized under the Constitution, the temporary Government of the Territory northwest of the river OhioOhio could no longer exist, save under the powers conferred on CongressCongress by the Constitution. Whatever legislative, judicial, or executive authority should be exercised therein could be derived only from the people of the under the Constitution. And, accordingly, an act was passed on the 7th day of August, 1789, (1 Stat. at Large, 50,) which recites: "Whereas, in order that the ordinance of the in CongressCongress assembled, for the government of the territory northwest of the river OhioOhio, may continue to have full effect, it is required that certain provisions should be made, so as to adapt the same to the present Constitution of the United StatesUnited States." It then provides for the appointment by the President of all officers, who, by force of the ordinance, were to have been appointed by the Congress of the Confederation, and their commission in the manner required by the Constitution; and empowers the Secretary of the Territory to exercise the powers of the Governor in case of the death or necessary absence of the latter.
Here is an explicit declaration of the will of the first Congress , of which fourteen members, including Mr. , had been members of the Convention which framed the Constitution, that the ordinance, one article of which prohibited slavery, "should continue to have full effect.". WashingtonWashington , who signed this bill, as President, was the President of that Convention.
It does not appear to me to be important, in this connection, that that clause in the ordinance
which prohibited slavery was one of a series of articles of what is therein termed a compact. The
Congress of the Confederation had no power to make such a compact, nor to act at all on the subject;
and after what had been so recently said by Mr. on this subject, in
the thirty-eighth number of the Federalist, I cannot suppose that he, or any others who voted for this bill, attributed any intrinsic effect to what was denominated in the ordinance a compact between "the original States and the people and States in the new territory;" there being no new States then in existence in the territory, with whom a compact could be made, and the few scattered inhabitants, unorganized into a political body, not being capable of becoming a party to a treaty, even if the Congress of the Confederation had had power to make one touching the government of that territory.
I consider the passage of this law to have been an assertion by the first Congress of the power of the to prohibit slavery within this part of the territory of the ; for it clearly shows that slavery was thereafter to be prohibited there, and it could be prohibited only by an exertion of the power of the , under the Constitution; no other power being capable of operating within that territory after the Constitution took effect.
On the 2d of April, 1790, (1 Stat. at Large, 106,) the first CongressCongress passed an act accepting a deed of cession by North Carolina of that territory afterwards erected into the . The fourth express condition contained in this deed of cession, after providing that the inhabitants of the Territory shall be temporarily governed in the same manner as those beyond the OhioOhio, is followed by these words: "Provided, always, that no regulations made or to be made by CongressCongress shall tend to emancipate slaves."
This provision shows that it was then understood CongressCongress might make a regulation prohibiting slavery, and that CongressCongress might also allow it to continue to exist in the Territory; and accordingly, when, a few days later, CongressCongress passed the act of May 20th, 1790, (1 Stat. at Large, 123,) for the government of the Territory south of the river OhioOhio, it provided, "and the Government of the Territory south of the OhioOhio shall be similar to that now exercised in the Territory northwest of the OhioOhio, except so far as is otherwise provided in the conditions expressed in an act of Congress of the present session, entitled, 'An act to accept a cession of the claims of the State of to a certain district of western territory.'" Under the Government thus established, slavery existed until the Territory became the .
On the 7th of April, 1798, (1 Stat. at Large, 649,) an act was passed to establish
a Government in the in all respects like that exercised in the
Territory northwest of the OhioOhio, "excepting and excluding the last article of the
ordinance made for the government thereof by the late CongressCongress , on the 13th day of
July, 1787." When the limits of this Territory had been amicably settled with ,
and the latter ceded all its claim thereto, it was one stipulation in the compact of
the ordinance of July 13th, 1787, "shall in all its parts extend to the Territory contained in the present act of cession, that article only excepted which forbids slavery." The Government of this Territory was subsequently established and organized under the act of May 10th, 1800; but so much of the ordinance as prohibited slavery was not put in operation there.
Without going minutely into the details of each case, I will now give reference to two classes of acts, in one of which CongressCongress has extended the ordinance of 1787, including the article prohibiting slavery, over different TerritoriesTerritories, and thus exerted its power to prohibit it; in the other, CongressCongress has erected Governments over TerritoriesTerritories acquired from and Spain, in which slavery already existed, but refused to apply to them that part of the Government under the ordinance which excluded slavery.
Of the first class are
the act of May 7th, 1800, (2 Stat. at Large, 58,) for the government of the ;
the act of January 11th, 1805, (2 Stat. at Large, 309,) for the government of ;
the act of May 3d, 1809, (2 Stat. at Large, 514,) for the government of the ;
the act of April 20th, 1836, (5 Stat. at Large, 10,) for the government of the ;
the act of June 12th, 1838, for the government of the ; the act of August 14th, 1848, for the government of the . To these instances should be added
the act of March 6th, 1820, (3 Stat. at Large, 548,) prohibiting slavery in the
Of the second class, in which CongressCongress refused to interfere with slavery already existing
under the municipal law of or , and established Governments by which slavery was
recognised and allowed, are:
the act of March 26th, 1804, (2 Stat. at Large, 283,) for the government of ;
the act of March 2d, 1805, (2 Stat. at Large, 322,) for the government of the ;
the act of June 4th, 1812, (2 Stat. at Large, 743,) for the government of the ;
the act of March 30th, 1822, (3 Stat. at Large, 654,) for the government of the . Here are eight distinct instances, beginning with the first CongressCongress , and coming down to the year 1848, in which CongressCongress has excluded slavery from the territory of the ; and six distinct instances in which CongressCongress organized Governments of TerritoriesTerritories by which slavery was recognised and continued, beginning also with the first CongressCongress , and coming down to the year 1822. These acts were severally signed by seven Presidents of the , beginning with General WashingtonWashington , and coming regularly down as far as Mr. , thus including all who were in public life when the Constitution was adopted.
If the practical construction of the Constitution contemporaneously with its going into effect, by men intimately acquainted with its history from their personal participation in framing and adopting it, and continued by them through a long series of acts of the gravest importance, be entitled to weight in the judicial mind on a question of construction, it would seem to be difficult to resist the force of the acts above adverted to.
It appears, however, from what has taken place at the bar, that notwithstanding the language of the Constitution, and the long line of legislative and executive precedents under it, three different and opposite views are taken of the power of CongressCongress respecting slavery in the TerritoriesTerritories.
One is, that though CongressCongress can make a regulation prohibiting slavery in a Territory, they cannot make a regulation allowing it; another is, that it can neither be established nor prohibited by CongressCongress , but that the people of a Territory, when organized by CongressCongress , can establish or prohibit slavery; while the third is, that the Constitution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and there hold them as property.
No particular clause of the Constitution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Governments, its inconsistency with the Declaration of Independence and with natural right.
The second is drawn from considerations equally general, concerning the right of self-government, and the nature of the political institutions which have been established by the people of the .
While the third is said to rest upon the equal right of all citizens to go with their property upon the public domain, and the inequality of a regulation which would admit the property of some and exclude the property of other citizens; and, inasmuch as slaves are chiefly held by citizens of those particular States where slavery is established, it is insisted that a regulation excluding slavery from a Territory operates, practically, to make an unjust discrimination between citizens of different States, in respect to their use and enjoyment of the territory of the .
With the weight of either of these considerations, when presented to CongressCongress to influence its action, this court has no concern. One or the other may be justly entitled to guide or control the legislative judgment upon what is a needful regulation. The question here is, whether they are sufficient to authorize this court to insert into this clause of the Constitution an exception of the exclusion or allowance of slavery, not found therein, nor in any other part of that instrument. To engraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument, and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Constitution, upon reasons purely political, renders its judicial interpretation impossible âbecause judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Constitution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Constitution; we are under the government of individual men, who for the time being have power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of CongressCongress ; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.
If it can be shown, by anything in the Constitution itself, that when it confers on CongressCongress the power to make all needful rules and regulations respecting the territory belonging to the , the exclusion or the allowance of slavery was excepted; or if anything in the history of this provision tends to show that such an exception was intended by those who framed and adopted the Constitution to be introduced into it, I hold it to be my duty carefully to consider, and to allow just weight to such considerations in interpreting the positive text of the Constitution. But where the Constitution has said all needful rules and regulations, I must find something more than theoretical reasoning to induce me to say it did not mean all.
There have been eminent instances in this court closely analogous to this one, in which such an attempt to introduce an exception, not found in the Constitution itself, has failed of success.
the eighth section of the first article, CongressCongress has the power of exclusive legislation in all cases whatsoever within this District.
In the case of Loughborough versusv.Blake , (5 Whea., 324,) the question arose, whether CongressCongress has power to impose direct taxes on persons and property in this District. It was insisted, that though the grant of power was in its terms broad enough to include direct taxation, it must be limited by the principle, that taxation and representation are inseparable. It would not be easy to fix on any political truth, better established or more fully admitted in our country, than that taxation and representation must exist together. We went into the war of the Revolution to assert it, and it is incorporated as fundamental into all American Governments. But however true and important this maxim may be, it is not necessarily of universal application. It was for the people of the , who ordained the Constitution, to decide whether it should or should not be permitted to operate within this District. Their decision was embodied in the words of the Constitution; and as that contained no such exception as would permit the maxim to operate in this District, this court, interpreting that language, held that the exception did not exist.
Again, the Constitution confers on CongressCongress power to regulate commerce with foreign nations. Under this, CongressCongress passed an act on the 22d of December, 1807, unlimited in duration, laying an embargo on all ships and vessels in the ports or within the limits and jurisdiction of the . No law of the ever pressed so severely upon particular States. Though the Constitutionality of the law was contested with an earnestness and zeal proportioned to the ruinous effects which were felt from it, and though, as Mr. Chief Justice MarshallMarshall has said, (9 Wheat., 192,) "a want of acuteness in discovering objections to a measure to which they felt the most deep-rooted hostility will not be imputed to those who were arrayed in opposition to this," I am not aware that the fact that it prohibited the use of a particular species of property, belonging almost exclusively to citizens of a few States, and this indefinitely, was ever supposed to show that it was unconstitutional. Something much more stringent, as a ground of legal judgment, was relied onâthat the power to regulate