I concur in the judgment pronounced by the Chief Justice, but the importance of the cause, the expectation and interest it has awakened, and the responsibility involved in its determination, induce me to file a separate opinion.
The case shows that the plaintiff, in the year 1834, was a negro slave in , the property of Dr. EmersonEmerson , a surgeon in the army of the . In 1834, his master took him to the military station at , on the border of , and in 1836 to , in the present , then , Territory. While at , the plaintiff married a slave who was there with her master, and two children have been born of this connection; one during the journey of the family in returning to , and the other after their return to that State.
Since 1838, the plaintiff and the members of his family have been in in the condition of slaves. The object of this suit is to establish their freedom. The defendant, who claims the plaintiff and his family, under the title of Dr. EmersonEmerson , denied the jurisdiction of the Circuit CourtCircuit Court , by the plea that the plaintiff was a negro of African blood, the descendant of Africans who had been imported and sold in this country as slaves, and thus he had no capacity as a citizen of MissouriMissouri to maintain a suit in the Circuit CourtCircuit Court . The court sustained a demurrer to this plea, a trial was then had upon the general issue, and special pleas to the effect that the plaintiff and his family were slaves belonging to the defendant.
My opinion in this case is not affected by the plea to the jurisdiction, and I shall not discuss the questions it suggests. The claim of the plaintiff to freedom depends upon the effect to be given to his absence from , in company with his master, in and , and this effect is to be ascertained by a reference to the laws of . For the trespass complained of was committed upon one claiming to be a freeman and a citizen, in that State, and who had been living for years under the dominion of its laws. And the rule is, that whatever is a justification where the thing is done, must be a justification in the forum where the case is tried. (20 How. St. Tri., 234; Cowp. S. C., 161.)
The Constitution of MissouriMissouri recognises slavery as a legal condition, extends guaranties to the masters of slaves, and invites immigrants to introduce them, as property, by a promise of protection. The laws of the State charge the master with the custody of the slave, and provide for the maintenance and security of their relation.
The Federal Constitution and the acts of CongressCongress provide for the return of escaping slaves within the limits of the Union. No removal of the slave beyond the limits of the State, against the consent of the master, nor residence there in another condition, would be regarded as an effective manumission by the courts of , upon his return to the State. "Sicut liberis captis status restituitur sic servus domino." Nor can the master emancipate the slave within the State, except through the agency of a public authority. The inquiry arises, whether the manumission of the slave is effected by his removal, with the consent of the master, to a community where the law of slavery does not exist, in a case where neither the master nor slave discloses a purpose to remain permanently, and where both parties have continued to maintain their existing relations. What is the law of in such a case? Similar inquiries have arisen in a great number of suits, and the discussions in the State courts have relieved the subject of much of its difficulty. (12 B. M. Ky. R., 545; Foster versusv.Foster , 10 Gratt. Va. R., 485; 4 Har. and McH. Md. R., 295; ScottScott versusv.EmersonEmerson , 15 Misso., 576; 4 Rich. S. C. R., 186; 17 Misso., 434; 15 Misso., 596; 5 B. M., 173; 8 B. M., 540, 633; 9 B. M., 565; 5 Leigh, 614; 1 Raud., 15; 18 Pick., 193.)
The result of these discussions is, that in general, the status, or civil and political capacity of a person, is determined, in the first instance, by the law of the domicil where he is born; that the legal effect on persons, arising from the operation of the law of that domicil, is not indelible, but that a new capacity or status may be acquired by a change of domicil. That questions of status are closely connected with considerations arising out of the social and political organization of the State where they originate, and each sovereign power must determine them within its own territories.
A large class of cases has been decided upon the second of the propositions above stated, in the Southern and Western courtsâcases in which the law of the actual domicil was adjudged to have altered the native condition and status of the slave, although he had never actually possessed the status of freedom in that domicil. (Rankin versusv.LydiaLydia , 2 A. K. M.; Herny versusv.Decker , Walk., 36; 4 Mart., 385; 1 Misso., 472; HunterHunter versusv.Fulcher , 1 Leigh.)
I do not impugn the authority of these cases. No evidence is found in the record to establish the existence of a domicil acquired by the master and slave, either in or . The master is described as an officer of the army, who was transferred from one station to another, along the Western frontier, in the line of his duty, and who, after performing the usual tours of service, returned to ; these slaves returned to with him, and had been there for near fifteen years, in that condition, when this suit was instituted. But absence, in the performance of military duty, without more, is a fact of no importance in determining a question of a change of domicil. Questions of that kind depend upon acts and intentions, and are ascertained from motives, pursuits, the condition of the family, and fortune of the party, and no change will be inferred, unless evidence shows that one domicil was abandoned, and there was an intention to acquire another. (11 L. and Eq., 6; 6 Exch., 217; 6 M. and W., 511; 2 Curt. Ecc. R., 368.)
The cases first cited deny the authority of a foreign law to dissolve relations which have been legally contracted in the State where the parties are, and have their actual domicilârelations which were never questioned during their absence from that Stateâ relations which are consistent with the native capacity and condition of the respective parties, and with the policy of the State where they reside; but which relations were inconsistent with the policy or laws of the State or Territory within which they had been for a time, and from which they had returned, with these relations undisturbed. It is upon the assumption, that the law of or was indelibly impressed upon the slave, and its consequences carried into , that the claim of the plaintiff depends. The importance of the case entitles the doctrine on which it rests to a careful examination.
It will be conceded, that in countries where no law or regulation prevails, opposed to
the existence and consequences of slavery, persons who are born in that condition in a
foreign State would not be liberated by the accident of their introgression. The relation
of domestic slavery is recognised in the law of nations, and the interference of the
authorities of one State with the rights of a master belonging to another, without a
valid cause, is a violation of that law.
Wheat. Law of Na., 724; 5 Stats. at Large, 601;
Calh. Sp., 378;
Reports of the Com. U. S. and G. B., 187, 238, 241.)
The public law of formerly permitted a master to reclaim his bondsman, within a
limited period, wherever he could find him, and one of the capitularies of
abolishes the rule of prescription. He directs, "that wheresoever, within the bounds of
, either the runaway slave of the king, or of the church, or of any
other man, shall be found by his master, he shall be restored
without any bar or prescription of years; yet upon the provision that the master be a
Frank or German, or of any other nation (foreign;) but if he be a Lombard or a RomanRoman ,
he shall acquire or receive his slaves by that law which has been established from
ancient times among them." Without referring for precedents abroad, or to the colonial
history, for similar instances, the history of the Confederation and Union affords
evidence to attest the existence of this ancient law. In 1783, CongressCongress directed
General WashingtonWashington to continue his remonstrances to the commander of the British
forces respecting the permitting negroes belonging to the citizens of these States
to leave , and to insist upon the discontinuance of that measure. In 1788,
the resident minister of the at was instructed to obtain from
the Spanish Crown orders to its Governors in and
, "to permit and
facilitate the apprehension of fugitive slaves from the States, promising that the
States would observe the like conduct respecting fugitives from Spanish subjects."
The committee that made the report of this resolution consisted of , ,
and , (
2 Hamilton's Works, 473;) and the clause in the Federal Constitution providing for the restoration of fugitive slaves is a recognition of this ancient right, and of the principle that a change of place does not effect a change of condition. The diminution of the power of a master to reclaim his escaping bondsman in commenced in the enactment of laws of prescription in favor of privileged communes. , , , , and , in Germany; , , , and , in , acquired privileges on this subject at an early period. The ordinance of , that a residence of any of the servile population of , for a year and a day, without being claimed, in any city, burgh, walled town, or castle of the KingKing , should entitle them to perpetual liberty, is a specimen of these laws.
The earliest publicist who has discussed this subject is , a jurist of the
sixteenth century, whose work was quoted in the early discussions of the courts in
and on this subject.
He says: "In , although there be some
remembrance of old servitude, yet it is not lawful here to make a slave or to buy
any one of others, insomuch as the slaves of strangers, so soon as they set their
foot within , become frank and free, as was determined by an old decree of
the court of against an ambassador of , who had brought a slave with
him into ." He states another case, which arose in the city of ,
of a Genoese merchant, who had
carried a slave into that city on his voyage from ; and when the matter
was brought before the magistrates, the "procureur of the city, out of the records,
showed certain ancient privileges given unto them of , wherein it was
granted that slaves, so soon as they should come into , should be free."
These cases were cited with much approbation in the discussion of the claims of
the slaves of for freedom, in 1738, before the judges in
admiralty, (15 Causes CelÈ³brÈ³s, p. 1; 2 Masse Droit Com., sec. 58,) and were
reproduced before Lord MansfieldMansfield , in the cause of SomersettSomersett , in 1772. Of the
cases cited by , it is to be observed that of exempted
all the inhabitants of from serfdom, or other feudal incapacities, in
1371, and this was confirmed by several of his successors, (
3 Dulaire Hist. de Par., 546;
Broud. Cout. de Par., 21,) and the
ordinance of Toulouse is preserved as follows: "Civitas Tholosana fuit et erit sine fine libera, adeo ut servi et ancillae, sclavi et sclavoe, dominos sive dominas habentes, cum rebus vel sine rebus suis, ad Tholosam vel infrÃ terminos extra urbem terminatos accedentes acquirant libertatem." (
Hist. de Langue, tome 3, p. 69;
Ibid. 6, p. 8;
Loysel Inst., b. 1, sec. 6.)
The decisions were made upon special ordinances, or charters, which contained positive prohibitions of slavery, and where liberty had been granted as a privilege; and the history of ParisParis furnishes but little support for the boast that she was a "sacro sancta civitas," where liberty always had an asylum, or for the "self-complacent rhapsodies" of the French advocates in the case of Verdelin , which amused the grave lawyers who argued the case of SomersettSomersett . The case of Verdelin was decided upon a special ordinance, which prescribed the conditions on which West India slaves might be introduced into , and which had been disregarded by the master.
The case of SomersettSomersett was that of a slave carried to by his master in 1770, and who remained there two years. For some cause, he was confined on a vessel destined to , where he was to be sold. , upon a return to a habeas corpus, states the question involved. "Here, the person of the slave himself," he says, "is the immediate subject of inquiry, Can any dominion, authority, or coercion, be exercised in this country, according to the American laws?" He answers: "The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme, and yet many of those consequences are absolutely contrary to the municipal law of ." Again, he says: "The return states that the slave departed, and refused to serve; whereupon, he was kept to be sold abroad.""So high an act of dominion must be recognised by the law of the country where it is used. The power of the master over his slave has been extremely different in different countries.""The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, are erased from the memory. It is so odious, that nothing can be suffered to support it but positive law." That there is a difference in the systems of States, which recognise and which do not recognise the institution of slavery, cannot be disguised. Constitutional law, punitive law, police, domestic economy, industrial pursuits, and amusements, the modes of thinking and of belief of the population of the respective communities, all show the profound influence exerted upon society by this single arrangement. This influence was discovered in the Federal Convention, in the deliberations on the plan of the Constitution. observed, "that the States were divided into different interests, not by their difference of size, but by other circumstances; the most material of which resulted partly from climate, but principally from the effects of their having or not having slaves. These two causes concur in forming the great division of interests in the ."
The question to be raised with the opinion of , therefore, is not in respect to the incongruity of the two systems, but whether slavery was absolutely contrary to the law of ; for if it was so, clearly, the American laws could not operate there. Historical research ascertains that at the date of the Conquest the rural population of were generally in a servile condition, and under various names, denoting slight variances in condition, they were sold with the land like cattle, and were a part of its living money. Traces of the existence of African slaves are to be found in the early chronicles. Parliament in the time of , and also of , refused to adopt a general law of emancipation. Acts of emancipation by the last-named monarch and by are preserved.
The African slave trade had been carried on, under the unbounded
protection of the Crown, for near two centuries, when the case of
SomersettSomersett was heard, and no motion for its suppression had ever been
submitted to Parliament; while it was forced upon and maintained in
unwilling colonies by the Parliament and Crown of England at that moment.
Fifteen thousand negro slaves were then living in that island, where they
had been introduced under the counsel of the most illustrious jurists of
the realm, and such slaves had been publicly
sold for near a century in the markets of LondonLondon . In the northern part
of the kingdom of there existed a class of from 30,000 to
40,000 persons, of whom the Parliament said, in 1775, (
15 GeorgeGeorge III, chap. 28,) "many colliers, coal-heavers, and salters, are in a state of slavery or bondage, bound to the collieries and salt works, where they work for life, transferable with the collieries and salt works when their original masters have no use for them; and whereas the emancipating or setting free the colliers, coal-heavers, and salters, in , who are now in a state of servitude, gradually and upon reasonable conditions, would be the means of increasing the number of colliers, coal-heavers, and salters, to the great benefit of the public, without doing any injury to the present masters, and would remove the reproach of allowing such a state of servitude to exist in a free country," &c.; and again, in 1799, "they declare that many colliers and coal-heavers still continue in a state of bondage." No statute, from the Conquest till the 15
, had been passed upon the subject of personal slavery. These facts have led the most eminent civilian of EnglandEngland to question the accuracy of this judgment, and to insinuate that in this judgment the offence of ampliare jurisdictionem by private authority was committed by the eminent magistrate who pronounced it.
This sentence is distinguishable from those cited from the French courts in this: that there positive prohibitions existed against slavery, and the right to freedom was conferred on the immigrant slave by positive law; whereas here the consequences of slavery merelyâthat is, the public policyâwere found to be contrary to the law of slavery. The case of the slave Grace , (2 Hagg.,) with four others, came before Lord StowellStowell in 1827, by appeals from the vice admiralty courts. They were cases of slaves who had returned to those islands, after a residence in , and where the claim to freedom was first presented in the colonial forum. The learned judge in that case said: "This suit fails in its foundation. She (Grace ) was not a free person; no injury is done her by her continuance in slavery, and she has no pretensions to any other station than that which was enjoyed by every slave of a family. If she depends upon such freedom conveyed by a mere residence in , she complains of a violation of right which she possessed no longer than whilst she resided in , but which totally expired when that residence ceased, and she was imported into ."
The decision of Lord MansfieldMansfield was, "that so high an act of dominion" as the master exercises over his slave, in sending him abroad for sale, could not be exercised in under the American laws, and contrary to the spirit of their own.
The decision of Lord StowellStowell is, that the authority of the English laws terminated when the slave departed from . That the laws of were not imported into , with the slave, upon her return, and that the colonial forum had no warrant for applying a foreign code to dissolve relations which had existed between persons belonging to that island, and which were legal according to its own system. There is no distinguishable difference between the case before us and that determined in the admiralty of .
The complaint here, in my opinion, amounts to this: that the judicial
tribunals of have not denounced as odious the Constitution and
laws under which they are organized, and have not superseded them on their
own private authority, for the purpose of applying the laws of , or
those passed by CongressCongress for , in their stead.
The eighth section of the act of Congress of the 6th of March, 1820, (3 Statutes at Large, 545,) entitled, "An act to authorize the people of MissouriMissouri to form a State Government," &c., &c., is referred to, as affording the authority to this court to pronounce the sentence which the Supreme Court of MissouriSupreme Court of Missouri felt themselves constrained to refuse. That section of the act prohibits slavery in the .
It is a settled doctrine of this court, that the Federal Government can exercise
no power over the subject of slavery within the States, nor control the intermigration
of slaves, other than fugitives, among the States. Nor can that Government affect the
duration of slavery within the States, other than by a legislation over the foreign
slave trade. The power of CongressCongress to adopt the section of the act above cited must
therefore depend upon some condition of the TerritoriesTerritories which distinguishes them
from States, and subjects them to a control more extended. The
third section of the fourth article of the Constitution is referred to as the only and all-sufficient grant to support this claim. It is, that "new States may be admitted by the CongressCongress to 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 the 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 United StatesUnited States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United StatesUnited States, or of any particular State."
It is conceded, in the decisions of this court, that CongressCongress may secure the rights of the in the public domain, provide for the sale or lease of any part of it, and establish the validity of the titles of the purchasers, and may organize Territorial Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1 Pet., 511; 13 P., 436; 16 H., 164.)
But the recognition of a plenary power in CongressCongress to dispose of the public domain, or to organize a Government over it, does not imply a corresponding authority to determine the internal polity, or to adjust the domestic relations, or the persons who may lawfully inhabit the territory in which it is situated. A supreme power to make needful rules respecting the public domain, and a similar power of framing laws to operate upon persons and things within the territorial limits where it lies, are distinguished by broad lines of demarcation in American history. This court has assisted us to define them. In JohnsonJohnson versusv.McIntosh , (8 Wheat., 595 543,) they say: "According to the theory of the British Constitution, all vacant lands are vested in the Crown; and the exclusive power to grant them is admitted to reside in the Crown, as a branch of the royal prerogative.
"All the lands we hold were originally granted by the Crown, and the establishment of a royal Government has never been considered as impairing its right to grant lands within the chartered limits of such colony."
And the British Parliament did claim a supremacy of legislation coextensive with the absoluteness of the dominion of the sovereign over the Crown lands. The American doctrine, to the contrary, is embodied in two brief resolutions of the people of , in 1774: 1st. "That the inhabitants of these colonies are entitled to the same rights and liberties, within the colonies, that the subjects born in are entitled within the realm." 2d. "That the power assumed by Parliament to bind the people of these colonies by statutes, in all cases whatever, is unconstitutional, and therefore the source of these unhappy difficulties." The Congress of 1774, in their statement of rights and grievances, affirm "a free and exclusive power of legislation" in their several Provincial Legislatures, "in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed." (1 Jour. Cong., 32.)
The unanimous consent of the people of the colonies, then, to the power of their sovereign, "to dispose of and make all needful rules and regulations respecting the territory" of the Crown, in 1774, was deemed by them as entirely consistent with opposition, remonstrance, the renunciation of allegiance, and proclamation of civil war, in preference to submission to his claim of supreme power in the territories.
I pass now to the evidence afforded during the Revolution and Confederation. The American Revolution was not a social revolution. It did not alter the domestic condition or capacity of persons within the colonies, nor was it designed to disturb the domestic relations existing among them. It was a political revolution, by which thirteen dependent colonies became thirteen independent States. "The Declaration of Independence was not," says Justice Chase , "a declaration that the United Colonies jointly, in a collective capacity, were independent States, &c., &c., &c., but that each of them was a sovereign and independent State; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power on earth." (3 Dall., 199; 4 Cr., 212.)
These sovereign and independent States, being united as a Confederation, by various public acts of cession, became jointly interested in territory, and concerned to dispose of and make all needful rules and regulations respecting it. It is a conclusion not open to discussion in this court, "that there was no territory within the (original) , that was claimed by them in any other right than that of some of the confederate States." (Harcourt versusv.Gaillord , 12 Wh., 523.) "The question whether the vacant lands within the United StatesUnited States," says Chief Justice MarshallMarshall , "became joint property, or belonged to the separate States, was a momentous question, which threatened to shake the American Confederacy to its foundations. This important and dangerous question has been compromised, and the compromise is not now to be contested." (6 C. R., 87.)
The cessions of the States to the Confederation were made on the condition that the territory ceded should be laid out and formed into distinct republican States, which should be admitted as members to the Federal Union, having the same rights of sovereignty, freedom, and independence, as the other States. The first effort to fulfil this trust was made in 1785, by the offer of a charter or compact to the inhabitants who might come to occupy the land.
Those inhabitants were to form for themselves temporary State Governments, founded on the constitutions of any of the States, but to be alterable at the will of their Legislature; and permanent Governments were to succeed these, whenever the population became sufficiently numerous to authorize the State to enter the Confederacy; and CongressCongress assumed to obtain powers from the States to facilitate this object. Neither in the deeds of cession of the States, nor in this compact, was a sovereign power for CongressCongress to govern the TerritoriesTerritories asserted. CongressCongress retained power, by this act, "to dispose of and to make rules and regulations respecting the public domain," but submitted to the people to organize a Government harmonious with those of the confederate States.
The next stage in the progress of colonial government was the adoption of
ordinance of 1787, by eight States, in which the plan of a Territorial Government, established by act of CongressCongress , is first seen. This was adopted while the Federal Convention to form the Constitution was sitting. The plan placed the Government in the hands of a Governor, Secretary, and Judges, appointed by CongressCongress , and conferred power on them to select suitable laws from the codes of the States, until the population should equal 5,000. A Legislative Council, elected by the people, was then to be admitted to a share of the legislative authority, under the supervision of CongressCongress ; and States were to be formed whenever the number of the population should authorize the measure.
This ordinance was addressed to the inhabitants as a fundamental compact,
and six of its articles define the conditions to be observed in their
Constitution and laws. These conditions were designed to fulfil the trust in
the agreements of cession, that the States to be formed of the ceded TerritoriesTerritories
should be "distinct republican States." This ordinance was submitted to
in 1788, and the
5th article, embodying as it does a summary of the entire act, was specifically ratified and confirmed by that State. This was an incorporation of the ordinance into her act of cession. It was conceded, in the argument, that the authority of CongressCongress was not adequate to the enactment of the ordinance, and that it cannot be supported upon the Articles of Confederation. To a part of the engagements, the assent of nine States was required, and for another portion no provision had been made in those articles. said, in a writing nearly contemporary, but before the confirmatory act of , "CongressCongress have proceeded to form new States, to erect temporary Governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy; all this has been done, and done without the least color of constitutional authority." (
Federalist, No. 38.) , one of the committee who reported the ordinance to CongressCongress , transmitted it to General WashingtonWashington , (15th July, 1787,) saying, "It seemed necessary, for the security of property among uninformed and perhaps licentious people, as the greater part of those who go there are, that a strong-toned Government should exist, and the rights of property be clearly defined." The consent of all the States represented in CongressCongress , the consent of the Legislature of , the consent of the inhabitants of the Territory, all concur to support the authority of this enactment. It is apparent, in the frame of the Constitution, that the Convention recognised its validity, and adjusted parts of their work with reference to it. The authority to admit new States into the Union, the omission to provide distinctly for Territorial Governments, and the clause limiting the foreign slave trade to States then existing, which might not prohibit it, show that they regarded this Territory as provided with a Government, and organized permanently with a restriction on the subject of slavery. Justice Chase , in the opinion already cited, says of the Government before, and it is in some measure true during the Confederation, that "the powers of CongressCongress originated from necessity, and arose out of and were only limited by events, or, in other words, they were revolutionary in their very nature. Their extent depended upon the exigencies and necessities of public affairs;" and there is only one rule of construction, in regard to the acts done, which will fully support them, viz: that the powers actually exercised were rightfully exercised, wherever they were supported by the implied sanction of the State Legislatures, and by the ratifications of the people.
The clauses in the
3d section of the 4th article of the Constitution, relative to the admission of new States, and the disposal and regulation of the territory of the , were adopted without debate in the Convention.
There was a warm discussion on the clauses that relate to the subdivision of the States, and the reservation of the claims of the and each of the States from any prejudice. The members revived the controversy in regard to the Crown lands of the Southwest. There was nothing to indicate any reference to a government of TerritoriesTerritories not included within the limits of the Union; and the whole discussion demonstrates that the Convention was consciously dealing with a Territory whose condition, as to government, had been arranged by a fundamental and unalterable compact.
An examination of this clause of the Constitution, by the light of the circumstances in which the Convention was placed, will aid us to determine its significance. The first clause is, "that new States may be admitted by the CongressCongress to this Union." The condition of , , , and the new States to be formed in the Northwest, suggested this, as a necessary addition to the powers of CongressCongress . The next clause, providing for the subdivision of States, and the parties to consent to such an alteration, was required, by the plans on foot, for changes in , , , , and . The clause which enables CongressCongress to dispose of and make regulations respecting the public domain, was demanded by the exigencies of an exhausted treasury and a disordered finance, for relief by sales, and the preparation for sales, of the public lands; and the last clause, that nothing in the Constitution should prejudice the claims of the or a particular State, was to quiet the jealousy and irritation of those who had claimed for the all the unappropriated lands. I look in vain, among the discussions of the time, for the assertion of a supreme sovereignty for CongressCongress over the territory then belonging to the , or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of CongressCongress . This disturbing element of the Union entirely escaped the apprehensive previsions of , , , and ; and, in respect to dangers from power vested in a central Government over distant settlements, colonies, or provinces, their instincts were always alive. Not a word escaped them, to warn their countrymen, that here was a power to threaten the landmarks of this federative Union, and with them the safeguards of popular and Constitutional liberty; or that under this article there might be introduced, on our soil, a single Government over a vast extent of countryâ a Government foreign to the persons over whom it might be exercised, and capable of binding those not represented, by statutes, in all cases whatever. I find nothing to authorize these enormous pretensions, nothing in the expositions of the friends of the Constitution, nothing in the expressions of alarm by its opponentsâ expressions which have since been developed as prophecies. Every portion of the was then provided with a municipal Government, which this Constitution was not designed to supersede, but merely to modify as to its conditions.
The compacts of cession by and are subsequent to the Constitution.
They adopt the
ordinance of 1787, except the clause respecting slavery. But the precautionary repudiation of that article forms an argument quite as satisfactory to the advocates for Federal power, as its introduction would have done. The refusal of a power to CongressCongress to legislate in one place, seems to justify the seizure of the same power when another place for its exercise is found.
This proceeds from a radical error, which lies at the foundation of much of this
discussion. It is, that the Federal Government may lawfully do whatever is not directly
prohibited by the Constitution. This would have been a fundamental error, if no amendments
to the Constitution had been made. But the final expression of the will of the people of
the States, in the
10th amendment, is, that the powers of the Federal Government are limited to the grants of the Constitution.
Before the cession of was made, CongressCongress asserted rights, in respect to a part of her territory, which require a passing notice. In 1798 and 1800, acts for the settlement of limits with , and to establish a Government in the , were adopted. A Territorial Government was organized, between the Chattahoochee and . This was within the limits of . These acts dismembered . They established a separate Government upon her soil, while they rather derisively professed, "that the establishment of that Government shall in no respects impair the rights of the , either to the jurisdiction or soil of the Territory." The Constitution provided that the importation of such persons as any of the existing States shall think proper to admit, shall not be prohibited by CongressCongress before 1808. By these enactments, a prohibition was placed upon the importation of slaves into , although her Legislature had made none.
This court have repeatedly affirmed the paramount claim of to this Territory.
They have denied the existence of any title in the .
(6 C. R., 87;
12 Wh., 523;
3 How., 212;
13 How., 381.) Yet these acts were cited in the argument as precedents
to show the power of CongressCongress in the TerritoriesTerritories. These statutes were the occasion of
earnest expostulation and bitter remonstrance on the part of the authorities of the
State, and the memory of their injustice and wrong remained long after the legal
settlement of the controversy by the
compact of 1802. A reference to these acts terminates what I have to say upon the Constitutions of the Territory within the original limits of the . These Constitutions were framed by the concurrence of the States making the cessions, and CongressCongress , and were tendered to immigrants who might be attracted to the vacant territory. The legislative powers of the officers of this Government were limited to the selection of laws from the States; and provision was made for the introduction of popular institutions, and their emancipation from Federal control, whenever a suitable opportunity occurred. The limited reservation of legislative power to the officers of the Federal Government was excused, on the plea of necessity; and the probability is, that the clauses respecting slavery embody some compromise among the statesmen of that time; beyond these, the distinguishing features of the system which the patriots of the Revolution had claimed as their birthright, from , predominated in them.
The acquisition of , in 1803, introduced another system into the . This vast province was ceded by , and its population had always been accustomed to a viceroyal Government, appointed by the Crowns of or . To establish a Government constituted on similar principles, and with like conditions, was not an unnatural proceeding.
But there was great difficulty in finding Constitutional authority for the measure.
third section of the fourth article of the Constitution was introduced into the Constitution, on the motion of Mr. . In 1803, he was appealed to for information in regard to its meaning. He answers: "I am very certain I had it not in contemplation to insert a decree de coercendo imperio in the Constitution of AmericaAmerica. * * * I knew then, as well as I do now, that all must at length be annexed to us. Happy indeed, if the lust of dominion stop here. It would therefore have been perfectly utopian to oppose a paper restriction to the violence of popular sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days later, he makes another reply to his correspondent. "I perceive," he says, "I mistook the drift of your inquiry, which substantially is, whether CongressCongress can admit, as a new State, territory which did not belong to the when the Constitution was made. In my opinion, they cannot. I always thought, when we should acquire and , it would be proper to GOVERN THEM AS PROVINCES, AND ALLOW THEM NO VOICE in our councils. In wording the third SECTION OF THE fourth article, I went as far as circumstances would permit, to establish the exclusion. Candor obliges me to add my belief, that had it been more pointedly expressed, a strong opposition would have been made," (3 Mor. Writ., 192.) The first Territorial Government of was an Imperial one, founded upon a French or Spanish model. For a time, the Governor, Judges, Legislative Council, Marshal, Secretary, and officers of the militia, were appointed by the President. *
[inlineauthdsc105_3[Note: * said: : : &c., &c. : : : : â Annals of CongressCongress , 1803â'4.]]
Besides these anomalous arrangements, the acquisition gave rise to jealous inquiries, as to the influence it would exert in determining the men and States that were to be "the arbiters and rulers" of the destinies of the Union; and unconstitutional opinions, having for their aim to promote sectional divisions, were announced and developed. "Something," said an eminent statesman, "something has suggested to the members of CongressCongress the policy of acquiring geographical majorities. This is a very direct step towards disunion, for it must foster the geographical enmities by which alone it can be effected. This something must be a contemplation of particular advantages to be derived from such majorities; and is it not notorious that they consist of nothing else but usurpations over persons and property, by which they can regulate the internal wealth and prosperity of States and individuals?"
The most dangerous of the efforts to employ a geographical political power, to
perpetuate a geographical preponderance in the Union, is to be found in the
deliberations upon the
act of the 6th of March, 1820, before cited. The attempt consisted of a proposal to exclude from a place in the Union, unless her people would adopt a Constitution containing a prohibition upon the subject of slavery, according to a prescription of CongressCongress . The sentiment is now general, if not universal, that CongressCongress had no Constitutional power to impose the restriction. This was frankly admitted at the bar, in the course of this argument. The principles which this court have pronounced condemn the pretension then made on behalf of the legislative department. In Groves versusv.Slaughter , (15 Pet.,) the Chief Justice said: "The power over this subject is exclusively with the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to be brought within its limits." Justice McLean said: "The Constitution of the United StatesUnited States operates alike in all the States, and one State has the same power over the subject of slavery as every other State." In Pollard's Lessee versusv.Hagan , (3 How., 212,) the court say: "The have no Constitutional capacity to exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by treaty or compact."
This is a necessary consequence, resulting from the nature of the Federal Constitution, which is a federal compact among the States, establishing a limited Government, with powers delegated by the people of distinct and independent communities, who reserved to their State Governments, and to themselves, the powers they did not grant. This claim to impose a restriction upon the people of involved a denial of the Constitutional relations between the people of the States and CongressCongress , and affirmed a concurrent right for the latter, with their people, to constitute the social and political system of the new States. A successful maintenance of this claim would have altered the basis of the Constitution. The new States would have become members of a Union defined in part by the Constitution and in part by CongressCongress . They would not have been admitted to "this Union". Their sovereignty would have been restricted by CongressCongress as well as the Constitution. The demand was unconstitutional and subversive, but was prosecuted with an energy, and aroused such animosities among the people, that patriots, whose confidence had not failed during the Revolution, begain to despair for the Constitution. * Amid the utmost violence of this extraordinary contest, the expedient contained in the eighth section of this act was proposed, to moderate it, and to avert the catastrophe it menaced. It was not seriously debated, nor were its constitutional aspects severely scrutinized by CongressCongress . For the first time, in the history of the country, has its operation been embodied in a case at law, and been presented to this court for their judgment. The inquiry is, whether there are conditions in the Constitutions of the TerritoriesTerritories which subject the capacity and status of persons within their limits to the direct action of CongressCongress . Can CongressCongress determine the condition and status of persons who inhabit the TerritoriesTerritories?
[inlineauthdsc105_4[Note: * wrote: ]]
The Constitution permits CongressCongress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the . This power applies as well to territory belonging to the within the States, as beyond them. It comprehends all the public domain, wherever it may be. The argument is, that the power to make "ALL needful rules and regulations""is a power of legislation,""a full legislative power;""that it includes all subjects of legislation in the territory," and is without any limitations, except the positive prohibitions which affect all the powers of Congress . Congress may then regulate or prohibit slavery upon the public domain within the new States, and such a prohibition would permanently affect the capacity of a slave, whose master might carry him to it. And why not? Because no power has been conferred on CongressCongress . This is a conclusion universally admitted. But the power to "make rules and regulations respecting the territory" is not restrained by State lines, nor are there any constitutional prohibitions upon its exercise in the domain of the within the States; and whatever rules and regulations respecting territory CongressCongress may constitutionally make are supreme, and are not dependent on the situs of "the territory."
The author of the Farmer's Letters, so famous in the ante-revolutionary history, thus states the argument made by the American loyalists in favor of the claim of the British Parliament to legislate in all cases whatever over the colonies: "It has been urged with great vehemence against us," he says, "and it seems to be thought their FORT by our adversaries, that a power of regulation is a power of legislation; and a power of legislation, if constitutional, must be universal and supreme, in the utmost sense of the word. It is therefore concluded that the colonies, by acknowledging the power of regulation, acknowledged every other power."
This sophism imposed upon a portion of the patriots of that day. Chief Justice MarshallMarshall ,
in his life of , says "that many of the best-informed men in had
perhaps adopted the opinion of the parliamentary right of internal government over the
colonies;""that the English statute book furnishes many instances of its exercise;""that in no case recollected, was their authority openly controverted;" and "that the
General Court of Massachusetts, on a late occasion, openly recognised the principle."
Marsh. Wash., versusv. 2, p. 75, 76.)
But the more eminent men of rejected it; and another patriot of the
time employs the instance to warn us of "the stealth with which oppression approaches,"
and "the enormities towards which precedents travel." And the people of the
, as we have seen, appealed to the last argument, rather than
acquiesce in their authority. Could it have been the purpose of
and his illustrious associates, by the use of ambiguous, equivocal, and expansive
words, such as "rules,""regulations,""territory," to re-establish in the
Constitution of their country that fort which had been
prostrated amid the toils and with the sufferings and sacrifices of seven years
of war? Are these words to be understood as the Norths, the Grenvilles,
Hillsboroughs, Hutchinsons, and Dunmoresin a word, as
would have understood themor are we to look for their interpretation to
or , to , and , and ; to the sage
, or to , who from his early manhood was engaged in combating
British constructions of such words? We know that the resolution of Congress of
1780 contemplated that the new States to be formed under their recommendation
were to have the same rights of sovereignty, freedom, and independence, as the
old. That every resolution, cession, compact, and ordinance, of the States,
observed the same liberal principle. That the Union of the Constitution is a
union formed of equal States; and that new States, when admitted, were to enter
"this Union." Had another union been proposed in "any pointed manner," it would
have encountered not only "strong" but successful opposition. The disunion between
and her colonies originated in the antipathy of the latter to "rules
and regulations" made by a remote power respecting their internal policy. In forming
the Constitution, this fact was ever present in the minds of its authors. The people
were assured by their most trusted statesmen "that the jurisdiction of the Federal
Government is limited to certain enumerated objects, which concern all
members of the republic," and "that the local or municipal authorities
form distinct portions of supremacy, no more subject within their respective
spheres to the general authority, than the general authority is subject to
them within its own sphere." Still, this did not content them. Under the lead
of and , of and , they demanded
an explicit declaration that no more power was to be exercised than they had
delegated. And the
ninth and tenth amendments to the Constitution were designed to include the reserved rights of the States, and the people, within all the sanctions of that instrument, and to bind the authorities, State and Federal, by the judicial oath it prescribes, to their recognition and observance. Is it probable, therefore, that the supreme and irresponsible power, which is now claimed for CongressCongress over boundless territories, the use of which cannot fail to react upon the political system of the States, to its subversion, was ever within the contemplation of the statesmen who conducted the counsels of the people in the formation of this Constitution? When the questions that came to the surface upon the acquisition of were presented to the mind of , he wrote: "I had rather ask an enlargement of power from the nation, where it is found necessary, than to assume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Constitution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Constitution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the Federal Government, and gives the powers necessary to carry them into execution." The publication of the
journals of the Federal Convention in 1819, of the debates reported by in 1840, and the mass of private correspondence of the early statesmen before and since, enable us to approach the discussion of the aims of those who made the Constitution, with some insight and confidence.
I have endeavored, with the assistance of these, to find a solution for the
grave and difficult question involved in this inquiry. My opinion is, that the
claim for Congress of supreme power in the TerritoriesTerritories, under the grant to
"dispose of and make all needful rules and regulations respecting
territory," is not supported by the historical
evidence drawn from the Revolution, the Confederation, or the deliberations
which preceded the ratification of the Federal Constitution. The
ordinance of 1787 depended upon the action of the Congress of the Confederation, the assent of the State of , and the acquiescence of the people who recognised the validity of that plea of necessity which supported so many of the acts of the Governments of that time; and the Federal Government accepted the ordinance as a recognised and valid engagement of the Confederation.
In referring to the precedents of 1798 and 1800, I find the Constitution was plainly violated by the invasion of the rights of a sovereign State, both of soil and jurisdiction; and in reference to that of 1804, the wisest statesmen protested against it, and the President more than doubted its policy and the power of the Government.
Mr. , at a later period, says of the last act, "that the President found CongressCongress mounted to the pitch of passing those acts, without inquiring where they acquired the authority, and he conquered his own scruples as they had done theirs." But this court cannot undertake for themselves the same conquest. They acknowledge that our peculiar security is in the possession of a written Constitution, and they cannot make it blank paper by construction.
They look to its delineation of the operations of the Federal Government, and they must not exceed the limits it marks out, in their administration. The court have said "that CongressCongress cannot exercise municipal jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, beyond what has been delegated." We are then to find the authority for supreme power in the TerritoriesTerritories in the Constitution. What are the limits upon the operations of a Government invested with legislative, executive, and judiciary powers, and charged with the power to dispose of and to make all needful rules and regulations respecting a vast public domain? The feudal system would have recognised the claim made on behalf of the Federal Government for supreme power over persons and things in the TerritoriesTerritories, as an incident to this titlethat is, the title to dispose of and make rules and regulations respecting it.
The Norman lawyers of would have yielded an implicit assent to the doctrine, that a supreme sovereignty is an inseparable incident to a grant to dispose of and to make all needful rules and regulations respecting the public domain. But an American patriot, in contrasting the European and American systems, may affirm, "that European sovereigns give lands to their colonists, but reserve to themselves a power to control their property, liberty, and privileges; but the American Government sells the lands belonging to the people of the several States (i. e., ) to their citizens, who are already in the possession of personal and political rights, which the Government did not give, and cannot take away." And the advocates for Government sovereignty in the TerritoriesTerritories have been compelled to abate a portion of the pretensions originally made in its behalf, and to admit that the Constitutional prohibitions upon CongressCongress operate in the TerritoriesTerritories. But a Constitutional prohibition is not requisite to ascertain a limitation upon the authority of the several departments of the Federal Government. Nor are the States or people restrained by any enumeration or definition of their rights or liberties.
To impair or diminish either, the department must produce an authority from the people themselves, in their Constitution; and, as we have seen, a power to make rules and regulations respecting the public domain does not confer a municipal sovereignty over persons and things upon it. But as this is "thought their fort" by our adversaries, I propose a more definite examination of it. We have seen, CongressCongress does not dispose of or make rules and regulations respecting domain belonging to themselves, but belonging to the .
These conferred on their mandatory, CongressCongress , authority to dispose of the territory which belonged to them in common; and to accomplish that object beneficially and effectually, they gave an authority to make suitable rules and regulations respecting it. When the power of disposition is fulfilled, the authority to make rules and regulations terminates, for it attaches only upon territory "belonging to the United StatesUnited States."
Consequently, the power to make rules and regulations, from the nature of the subject,
is restricted to such administrative and conservatory acts as are needful for the
preservation of the public domain, and its preparation for sale or disposition. The
system of land surveys; the reservations for schools, internal improvements, military
sites, and public buildings; the preemption claims of settlers; the establishment of
land offices, and boards of inquiry, to determine the validity of land titles; the modes
of entry, and sale, and of conferring titles; the protection of the lands from trespass
and waste; the partition of the public domain into municipal subdivisions, having reference
to the erection of Territorial Governments and States; and perhaps the selection, under their
authority, of suitable laws for the protection of the settlers, until there may be a
sufficient number of them to form a self-sustaining municipal Governmentâthese
important rules and regulations will sufficiently illustrate the scope and operation
3d section of the 4th article of the Constitution. But this clause in the Constitution does not exhaust the powers of CongressCongress within the territorial subdivisions, or over the persons who inhabit them. CongressCongress may exercise there all the powers of Government which belong to them as the Legislature of the , of which these TerritoriesTerritories make a part. (Loughborough versusv.Blake , 5 Wheat., 317.) Thus the laws of taxation, for the regulation of foreign, Federal, and Indian commerce, and so for the abolition of the slave trade, for the protection of copyrights and inventions, for the establishment of postal communication and courts of justice, and for the punishment of crimes, are as operative there as within the States. I admit that to mark the bounds for the jurisdiction of the Government of the within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and, in a great measure, is beyond the cognizance of the judiciary department of that Government. How much municipal power may be exercised by the people of the Territory, before their admission to the Union, the courts of justice cannot decide. This must depend, for the most part, on political considerations, which cannot enter into the determination of a case of law or equity. I do not feel called upon to define the jurisdiction of CongressCongress . It is sufficient for the decision of this case to ascertain whether the residuary sovereignty of the States or people has been invaded by the
8th section of the act of 6th March, 1820, I have cited, in so far as it concerns the capacity and status of persons in the condition and circumstances of the plaintiff and his family.
These States, at the adoption of the Federal Constitution, were organized communities, having distinct systems of municipal law, which, though derived from a common source, and recognising in the main similar principles, yet in some respects had become unlike, and on a particular subject promised to be antagonistic.
Their systems provided protection for life, liberty, and property, among their citizens, and for the determination of the condition and capacity of the persons domiciled within their limits. These institutions, for the most part, were placed beyond the control of the Federal Government. The Constitution allows CongressCongress to coin money, and regulate its value; to regulate foreign and Federal commerce; to secure, for a limited period, to authors and inventors, a property in their writings and discoveries; and to make rules concerning captures in war; and, within the limits of these powers, it has exercised, rightly, to a greater or less extent, the power to determine what shall and what shall not be property.
But the great powers of war and negotiation, finance, postal communication, and commerce, in general, when employed in respect to the property of a citizen, refer to, and depend upon, the municipal laws of the States, to ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held.
Whatever these constitutions and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognise to be property.
And this principle follows from the structure of the respective Governments, State and Federal, and their reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their respective jurisdictions, are mutually obligatory. They are respectively the depositories of such powers of legislation as the people were willing to surrender, and their duty is to co-operate within their several jurisdictions to maintain the rights of the same citizens under both Governments unimpaired.
A proscription, therefore, of the Constitution and laws of one or more States, determining property,
on the part of the Federal Government, by which the stability of its social system may be endangered, is
plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government
was designed to accomplish. Each of the States surrendered its powers of war and negotiation, to raise armies
and to support a navy, and all of these powers are sometimes required to preserve a State from disaster
and ruin. The Federal Government was constituted to exercise these powers for the preservation of the
States, respectively, and to secure to all their citizens the enjoyment of the rights which were not
surrendered to the Federal Government. The provident care of the statesmen who projected the Constitution
was signalized by such a distribution of the powers of Government as to exclude many of the motives and
opportunities for promoting provocations and spreading discord among the States, and for guarding against
those partial combinations, so destructive of the community of interest, sentiment, and feeling, which are
so essential to the support of the Union. The distinguishing features of their system consist in the
exclusion of the Federal Government from the local and internal concerns of, and in the establishment
of an independent internal Government within, the States. And it is a significant fact in the history
of the , that those controversies which have been productive of the greatest animosity,
and have occasioned most peril to the peace of the Union, have had their origin in the well-sustained
opinion of a minority among the people, that the Federal Government had overstepped its constitutional
limits to grant some exclusive privilege, or to disturb the legitimate distribution of property or power
among the States or individuals. Nor can a more signal instance of this be found than is furnished by the
act before us. No candid or rational man can hesitate to believe, that if the subject of the
eighth section of the act of March, 1820, had never been introduced into CongressCongress and made the basis of legislation, no interest common to the Union would have been seriously affected. And, certainly, the creation, within this Union, of large confederacies of unfriendly and frowning States, which has been the tendency, and, to an alarming extent, the result, produced by the agitation arising from it, does not commend it to the patriot or statesman. This court have determined that the intermigration of slaves was not committed to the jurisdiction or control of CongressCongress . Wherever a master is entitled to go within the , his slave may accompany him, without any impediment from, or fear of, Congressional legislation or interference. The question then arises, whether CongressCongress , which can exercise no jurisdiction over the relations of master and slave within the limits of the Union, and is bound to recognise and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit the continuance of those relations, within the TerritoriesTerritories.
And the citation of State statutes prohibiting the immigration of slaves, and of the decisions of State courts enforcing the forfeiture of the master's title in accordance with their rule, only darkens the discussion. For the question is, have CongressCongress the municipal sovereignty in the TerritoriesTerritories which the State Legislatures have derived from the authority of the people, and exercise in the States?
And this depends upon the construction of the article in the Constitution before referred to.
And, in my opinion, that clause confers no power upon CongressCongress to dissolve the relations of the master and slave on the domain of the United StatesUnited States, either within or without any of the States.
The eighth section of the act of Congress of the 6th of March, 1820, did not, in my opinion, operate to determine the domestic condition and status of the plaintiff and his family during their sojourn in , or after their return to .
The question occurs as to the judgment to be given in this case. It appeared upon the trial that the plaintiff, in 1834, was in a state of slavery in , and he had been in for near fifteen years in that condition when this suit was brought. Nor does it appear that he at any time possessed another state or condition, de facto. His claim to freedom depends upon his temporary elocation, from the domicil of his origin, in company with his master, to communities where the law of slavery did not prevail. My examination is confined to the case, as it was submitted upon uncontested evidence, upon appropriate issues to the jury, and upon the instructions given and refused by the court upon that evidence. My opinion is, that the opinion of the Circuit CourtCircuit Court was correct upon all the claims involved in those issues, and that the verdict of the jury was justified by the evidence and instructions.
The jury have returned that the plaintiff and his family are slaves.
Upon this record, it is apparent that this is not a controversy between citizens of different States; and that the plaintiff, at no period of the life which has been submitted to the view of the court, has had a capacity to maintain a suit in the courts of the . And in so far as the argument of the Chief Justice upon the plea in abatement has a reference to the plaintiff or his family, in any of the conditions or circumstances of their lives, as presented in the evidence, I concur in that portion of his opinion. I concur in the judgment which expresses the conclusion that the Circuit CourtCircuit Court should not have rendered a general judgment.
The capacity of the plaintiff to sue is involved in the pleas in bar, and the verdict of the jury discloses an incapacity under the Constitution. Under the Constitution of the United StatesUnited States, his is an incapacity to sue in their courts, while, by the laws of , the operation of the verdict would be more extensive. I think it a safe conclusion to enforce the lesser disability imposed by the Constitution of the United StatesUnited States, and leave to the plaintiff all his rights in . I think the judgment should be affirmed, on the ground that the Circuit CourtCircuit Court had no jurisdiction, or that the case should be reversed and remanded, that the suit may be dismissed.