The defendant pleaded to the jurisdiction of the Circuit CourtCircuit Court , 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 had no capacity as a citizen of to maintain a suit in the Circuit CourtCircuit Court . The court sustained a demurrer to this plea, and a trial was had upon the pleas, of the general issue, and also that the plaintiff and his family were slaves, belonging to the defendant. In this trial, a verdict was given for the defendant.
The judgment of the Circuit CourtCircuit Court upon the plea in abatement is not open, in my opinion, to examination in this court upon the plaintiff's writ.
The judgment was given for him conformably to the prayer of his demurrer. He cannot assign an
error in such a judgment.
Tidd's Pr., 1163; 2 Williams's Saund., 46 a; 2 Iredell N. C., 87; 2 W. and S., 391.) Nor does the fact that the judgment was given on a plea to the jurisdiction, avoid the application of this rule. (CapronCapron versusv.Van NoordenVan Noorden , 2 Cr., 126; 6 Wend., 465; 7 Met., 598; 5 PikePike , 1005.)
The declaration discloses a case within the jurisdiction of the courtâa controversy between citizens of different States. The plea in abatement, impugning these jurisdictional averments, was waived when the defendant answered to the declaration by pleas to the merits. The proceedings on that plea remain a part of the technical record, to show the history of the case, but are not open to the review of this court by a writ of error. The authorities are very conclusive on this point. Shepherd versusv.Graves , 14 How., 505; Bailey versusv.Dozier , 6 How., 23; 1 Stewart, (Alabama,) 46; 10 Ben. Monroe, ( KentuckyKentucky,) 555; 2 Stewart, (Alabama,) 370, 443; 2 Scammon, ( IllinoisIllinois,) 78. Nor can the court assume, as admitted facts, the averments of the plea from the confession of the demurrer. That confession was for a single object, and cannot be used for any other purpose than to test the validity of the plea. Tompkins versusv.Ashley , 1 Moody and Mackin, 32; 33 Maine, 96, 100.
There being nothing in controversy here but the merits, I will proceed to discuss them.
The plaintiff claims to have acquired property in himself, and became free, by being kept in during two years.
The Constitution, laws, and policy, of , are somewhat peculiar respecting slavery. Unless the master becomes an inhabitant of that State, the slaves he takes there do not acquire their freedom; and if they return with their master to the slave State of his domicil, they cannot assert their freedom after their return. For the reasons and authorities on this point, I refer to the opinion of my brother NelsonNelson , with which I not only concur, but think his opinion is the most conclusive argument on the subject within my knowledge.
It is next insisted for the plaintiff, that his freedom (and that of his wife and
eldest child) was obtained by force of the
act of Congress of 1820, usually known as the MissouriMissouri compromise act, which declares: "That in all that territory ceded by to the , which lies north of thirty-six degrees thirty minutes north latitude, slavery and involuntary servitude shall be, and are hereby, forever prohibited."
From this prohibition, the territory now constituting the was excepted; which exception to the stipulation gave it the designation of a compromise.
The first question presented on this act is, whether CongressCongress had power to make such compromise. For, if power was wanting, then no freedom could be acquired by the defendant under the act.
That CongressCongress has no authority to pass laws and bind men's rights beyond the powers conferred by the Constitution, is not open to controversy. But it is insisted that, by the Constitution, CongressCongress has power to legislate for and govern the TerritoriesTerritories of the , and that by force of the power to govern, laws could be enacted, prohibiting slavery in any portion of the ; and, of course, to abolish slavery in all parts of it, whilst it was, or is, governed as a Territory.
My opinion is, that CongressCongress is vested with power to govern
the TerritoriesTerritories of the by force of the
third section of the fourth article of the Constitution. And I will state my reasons for this opinion.
Almost every provision in that instrument has a history that must be understood, before the brief and sententious language employed can be comprehended in the relations its authors intended. We must bring before us the state of things presented to the Convention, and in regard to which, it acted, when the compound provision was made, declaring: 1st. That "new States may be admitted by the CongressCongress into this Union." 2d. "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."
Having ascertained the historical facts giving rise to these provisions, the difficulty of arriving at the true meaning of the language employed will be greatly lessened.
The history of these facts is substantially as follows:
The KingKing of , by his
proclamation of 1763, virtually claimed that the country west of the mountains had been conquered from , and ceded to the Crown of by
the treaty of ParisParis of that year, and he says: "We reserve it under our sovereignty, protection, and dominion, for the use of the Indians."
This country was conquered from the Crown of , and surrendered to the
the treaty of peace of 1783. The colonial charters of , , and , included it. Other States set up pretensions of claim to some portions of the , but they were of no value, as I suppose. (5 Wheat., 375.)
As this vacant country had been won by the blood and treasure of all the States, those whose charters did not reach it, insisted that the country belonged to the States united, and that the lands should be disposed of for the benefit of the whole; and to which end, the western territory should be ceded to the States united. The contest was stringent and angry, long before the Convention convened, and deeply agitated that body. As a matter of justice, and to quiet the controversy, consented to cede the as early as 1783; and in 1784 the deed of cession was executed, by her delegates in the Congress of the Confederation, conveying to the in CongressCongress assembled, for the Benefit of said States, "all right, title, and claim, as well of soil as of jurisdiction, which this Commonwealth hath to the territory or tract of country within the limits of the charter, situate, lying, and being to ." In 1787, (July 13,) the ordinance was passed by the old CongressCongress to govern the Territory.
had ceded her pretension of claim to western territory in 1785, hers in 1786, and had ceded hers. In August, 1787, ceded to the Confederation her pretension of claim to territory west of that State. And was expected to cede hers, which she did do, in April, 1790. And so was confidently expected to cede her large domain, now constituting the territory of the States of and .
At the time the Constitution was under consideration, there had been ceded to the , or was shortly expected to be ceded, .
Although had conferred on the Congress of the Confederation power to govern the , still, it cannot be denied, as I think, that power was wanting to admit a new State under the Articles of Confederation.
With these facts prominently before the Convention, they proposed to accomplish these ends:
And, thirdly, to give power to govern the different TerritoriesTerritories as incipient States, not of the Union, and fit them for admission. No one in the Convention seems to have doubted that these powers were necessary. As early as the third day of its session, (May 29th,) brought forward a set of resolutions containing nearly all the germs of the Constitution, the tenth of which is as follows:
"Resolved, That provision ought to be made for the admission of States lawfully arising within the limits of the , whether from a voluntary junction of government and territory or otherwise, with the consent of a number of voices in the National Legislature less than the whole."
August 18th, submitted, in order to be referred to the committee of detail, the following powers as proper to be added to those of the General Legislature:
"To dispose of the unappropriated lands of the United StatesUnited States.""To institute
temporary Governments for new States arising therein."
3 MadisonMadison Papers, 1353.)
These, with the resolution, that a district for the location of the seat of Government should be provided, and some others, were referred, without a dissent, to the committee of detail, to arrange and put them into satisfactory language.
constructed the clauses, and combined the views of a majority
on the two provisions, to admit new States; and secondly, to dispose of the public
lands, and to govern the TerritoriesTerritories, in the mean time, between the cessions of the
States and the admission into the Union of new States arising in the ceded territory.
3 MadisonMadison Papers, 1456 to 1466.)
It was hardly possible to separate the power "to make all needful rules and regulations" respecting the government of the territory and the disposition of the public lands.
conveyed the lands, and vested the jurisdiction in
the thirteen original States, before the Constitution was formed. She had the sole
title and sole sovereignty, and the same power to cede, on any terms she saw proper,
that the KingKing of had to grant the colonial charter of 1609
, or to
grant the charter of PennsylvaniaPennsylvania to . The thirteen States, through
their representatives and deputed ministers in the old CongressCongress , had the same right
to govern that had before the cession.
Baldwin's Constitutional Views, 90.) And the
sixth article of the Constitution adopted all engagements entered into by the Congress of the Confederation, as valid against the ; and that the laws, made in pursuance of the new Constitution, to carry out this engagement, should be the supreme law of the land, and the judges bound thereby. To give the compact, and the ordinance, which was part of it, full effect under the new Government, the act of August 7th, 1789, was passed, which declares, "Whereas, in order that the ordinance of the in CongressCongress assembled, for the government of the , may have full effect, it is requisite that certain provisions should be made, so as to adapt the same to the present Constitution of the United StatesUnited States." It is then provided that the Governor and other officers should be appointed by the President, with the consent of the Senate; and be subject to removal, &c., in like manner that they were by the old CongressCongress , whose functions had ceased.
By the powers to govern, given By the Constitution, those amendments to the ordinance could be made, but CongressCongress guardedly abstained from touching the compact of , further than to adapt it to the new Constitution.
It is due to myself to say, that it is asking much of a judge, who has for nearly twenty years been exercising jurisdiction, , and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of CongressCongress was the only rule, to agree that he had been all the while acting in mistake, and as an usurper.
More than sixty years have passed away since CongressCongress has exercised power to govern the TerritoriesTerritories, by its legislation directly, or by Territorial charters, subject to repeal at all times, and it is now too late to call that power into question, if this court could disregard its own decisions; which it cannot do, as I think. It was held in the case of Cross versusv.HarrisonHarrison , (16 How., 193-'4,) that the sovereignty of was in the , in virtue of the Constitution, by which power had been given to CongressCongress to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the , with the power to admit new States into the Union. That decision followed preceding ones, there cited. The question was then presented, how it was possible for the judicial mind to conceive that the Government, created solely by the Constitution, could, by a lawful treaty, acquire territory over which the acquiring power had no jurisdiction to hold and govern it, by force of the instrument under whose authority the country was acquired; and the foregoing was the conclusion of this court on the proposition. What was there announced, was most deliberately done, and with a purpose. The only question here is, as I think, how far the power of CongressCongress is limited.
As to the , had the right to abolish slavery
there; and she did so agree in 1787, with the other States in the Congress
of the Confederation, by assenting to and adopting
the ordinance of 1787, for the government of the . She did this also by an act of her Legislature, passed afterwards, which was a treaty in fact.
Before the new Constitution was adopted, she had as much right to treat and agree as any European Government had. And, having excluded slavery, the new Government was bound by that engagement by article six of the new Constitution. This only meant that slavery should not exist whilst the exercised the power of government, in the Territorial form; for, when a new State came in, it might do so, with or without slavery.
My opinion is, that CongressCongress had no power, in face of the compact between and the twelve other States, to force slavery into the , because there, it was bound to that "engagement," and could not break it.
In 1790, ceded her western territory, now the , and stipulated that the inhabitants thereof should enjoy all the privileges and advantages of the ordinance for governing the territory north of the , and that CongressCongress should assume the government, and accept the cession, under the express conditions contained in the ordinance: Provided,"That no regulation made, or to be made, by CongressCongress , shall tend to emancipate slaves."
In 1802, ceded her
western territory to the , with the provision
the ordinance of 1787 should in all its parts extend to the territory ceded, "that article only excepted which forbids slavery."CongressCongress had no more power to legislate slavery out from the and cessions, than it had power to legislate slavery in, . No power existed in CongressCongress to legislate at all, affecting slavery, in either case. The inhabitants, as respected this description of property, stood protected whilst they were governed by CongressCongress , in like manner that they were protected before the cession was made, and when they were, respectively, parts of and .
And how does the power of CongressCongress stand ? The country there was acquired from , by treaty, in 1803. It declares, that the First Consul , in the name of the French Republic, doth hereby cede to the , in full sovereignty, the colony or province of , with all the rights and appurtenances of the said territory. And, by article third, that "the inhabitants of the ceded territory shall be incorporated in the Union of the , and admitted as soon as possible, according to the principles of the Federal Constitution, to the enjoyment of all the rights, advantages, and immunities, of citizens of the ; and, in the mean time, they shall be maintained and protected in the free enjoyment of their liberty, property, and the religion which they profess."
was a province where slavery was not only lawful, but where property in slaves was the most valuable of all personal property. The province was ceded as a unit, with an equal right pertaining to all its inhabitants, in every part thereof, to own slaves. It was, to a great extent, a vacant country, having in it few civilized inhabitants. No one portion of the colony, of a proper size for a State of the Union had a sufficient number of inhabitants to claim admission into the Union. To enable the to fulfil the treaty, additional population was indispensable, and obviously desired with anxiety by both sides, so that the whole country should, as soon as possible, become States of the Union. And for this contemplated future population, the treaty as expressly provided as it did for the inhabitants residing in the province when the treaty was made. All these were to be protected "in the mean time;" that is to say, at all times, between the date of the treaty and the time when the portion of the Territory where the inhabitants resided was admitted into the Union as a State.
At the date of the treaty, each inhabitant had the right to the free enjoyment of his property, alike with his liberty and his religion, in every part of ; the province then being one country, he might go everywhere in it, and carry his liberty, property, and religion, with him, and in which he was to be maintained and protected, until he became a citizen of a State of the Union of the . This cannot be denied to the original inhabitants and their descendants. And, if it be true that immigrants were equally protected, it must follow that they can also stand on the treaty.
The settled doctrine in the State courts of is, that a French
subject coming to the , after
the treaty of 1803 was made, and before was admitted into the Union, and being an inhabitant at the time of the admission, became a citizen of the by that act; that he was one of the inhabitants contemplated by
the third article of the treaty, which referred to all the inhabitants embraced within the new State on its admission.
That this is the true construction, I have no doubt.
If power existed to draw a line at , so CongressCongress had equal power to draw the line on the âthat is, due west from the city of âand to declare that north of that line slavery should never exist. Suppose this had been done before 1812, when came into the Union, and the question of infraction of the treaty had then been presented on the present assumption of power to prohibit slavery, who doubts what the decision of this court would have been on such an act of CongressCongress ; yet, the difference between the supposed line, and that on , is only in the degree of grossness presented by the lower line.
MissouriMissouri compomise line of 1820 was very aggressive; it declared that slavery was abolished forever throughout a country reaching from the to the , stretching over , and on its eastern side, sweeping over four-fifths, to say no more, of the original province of .
That the Government stipulated in favor of
the inhabitants to the extent here contended for, has not been seriously denied,
as far as I know; but the argument is, that CongressCongress had authority to
the third article of the treaty of 1803, in so far as it secured the right to hold slave property, in a portion of the ceded territory, leaving the right to exist in other parts. In other words, that CongressCongress could repeal the third article entirely, at its pleasure. This I deny.
The compacts with and were treaties also, and stood on the same footing of the treaty; on the assumption of power to repeal the one, it must have extended to all, and CongressCongress could have excluded the slaveholder of from the enjoyment of his lands in the Territory now the , where the citizens of the mother State were the principal proprietors.
And so in the case of . Her citizens could have been refused the right to emigrate to the or Territory, unless they left their most valuable and cherished property behind them.
The Constitution was framed in reference to facts then existing or likely to arise: the instrument looked to no theories of Government. In the vigorous debates in the Convention, as reported by and others, surrounding facts, and the condition and necessities of the country, gave rise to almost every provision; and among those facts, it was prominently true, that CongressCongress dare not be intrusted with power to provide that, if or ceded her western territory, the citizens of the State (in either case) could be prohibited, at the pleasure of CongressCongress , from removing to their lands, then granted to a large extent, in the country likely to be ceded, unless they left their slaves behind. That such an attempt, in the face of a population fresh from the war of the Revolution, and then engaged in war with the great confederacy of Indians, extending from the to , would end in open revolt, all intelligent men knew.
In view of these facts, let us inquire how the question stands by the terms of the Constitution, aside from the treaty? How it stood in public opinion when the cession was made, in 1802, is apparent from the fact that no guaranty was required by of the , for the protection of slave property. The Federal Constitution was relied on, to secure the rights of Georgia and her citizens during the Territorial condition of the country. She relied on the indisputable truths, that the States were by the Constitution made equals in political rights, and equals in the right to participate in the common property of all the States united, and held in trust for them. The Constitution having provided that "The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States," the right to enjoy the territory as equals was reserved to the States, and to the citizens of the States, respectively. The cited clause is not that citizens of the shall have equal privileges in the TerritoriesTerritories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures his equality through the equality of his State, by virtue of that great fundamental condition of the Unionthe equality of the States.
Congress cannot do indirectly what the Constitution prohibits directly. If the slaveholder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact, it will follow that men owning lawful property in their own States, carrying with them the equality of their State to enjoy the common property, may be told, you cannot come here with your slaves, and he will be held out at the border. By this subterfuge, owners of slave property, to the amount of thousand of millions, might be almost as effectually excluded from removing into the Territory of , as if the law declared that owners of slaves, as a class, should be excluded, even if their slaves were left behind.
Just as well might CongressCongress have said to those of the North, you shall not introduce into the territory south of said line your cattle or horses, as the country is already overstocked; nor can you introduce your tools of trade, or machines, as the policy of CongressCongress is to encourage the culture of sugar and cotton south of the line, and so to provide that the Northern people shall manufacture for those of the South, and barter for the staple articles slave labor produces. And thus the Northern farmer and mechanic would be held out, as the slaveholder was for thirty years, by the restriction.
If CongressCongress could prohibit one species of property, lawful throughout LouisianaLouisiana when it was acquired, and lawful in the State from whence it was brought, so CongressCongress might exclude any or all property.
The case before us will illustrate the construction contended for. Dr.
EmersonEmerson 's was a citizen of ; he had an equal right to go to the
Territory with every citizen of other States. This is undeniable, as I suppose.
ScottScott was Dr. EmersonEmerson s lawful property in ;
he carried his
title with him; and the precise question here is, whether CongressCongress had the
power to annul that title. It is idle to say, that if CongressCongress could not
defeat the title directly, that it might be done
indirectly, by drawing a narrow circle around the slave population of
, and declaring that if the slave went beyond it, he should
be free. Such assumption is mere evasion, and entitled to no consideration.
And it is equally idle to contend, that because CongressCongress has express power
to regulate commerce among the Indian tribes, and to prohibit intercourse
with the Indians, that therefore Dr. EmersonEmerson 's title might be defeated
within the country ceded by the Indians to the as early as
1805, and which embraces .
Am. State Papers, vol. 1, p. 734.) We must meet the question, whether CongressCongress had the power to declare that a citizen of a State, carrying with him his equal rights, secured to him through his State, could be stripped of his goods and slaves, and be deprived of any participation in the common property? If this be the true meaning of the Constitution, equality of rights to enjoy a common country (equal to a thousand miles square) may be cut off by a geographical line, and a great portion of our citizens excluded from it.
Ingenious, indirect evasions of the Constitution have been attempted and defeated heretofore. In the passenger cases, (7 How. R.,) the attempt was made to impose a tax on the masters, crews, and passengers of vessels, the Constitution having prohibited a tax on the vessel itself; but this court held the attempt to be a mere evasion, and pronounced the tax illegal.
I admit that could, and lawfully did, prohibit slavery , by her charter of cession, and that the territory was taken by the with this condition imposed. I also admit that could, by the treaty of 1803, have prohibited slavery in any part of the ceded territory, and imposed it on the as a fundamental condition of the cession, in the mean time, till new States were admitted in the Union.
I concur with Judge Baldwin , that Federal power is exercised over all
the territory within the , pursuant to the Constitution;
and, the conditions of the cession, whether it
was a part of the original territory of a State of the Union, or of a
foreign State, ceded by deed or treaty; the right of the United StatesUnited States
in or over it depends on the contract of cession, which operates to
incorporate as well the Territory as its inhabitants into the Union.
Baldwin's Constitutional Views, 84.)
My opinion is, that
the third article of the treaty of 1803, ceding to the , stands protected by the Constitution, and cannot be repealed by CongressCongress .
And, secondly, that
the act of 1820, known as the MissouriMissouri compromise, violates the most leading feature of the Constitutionâ a feature on which the Union depends, and which secures to the respective States and their citizens an entire EQUALITY of rights, privileges, and immunities.
On these grounds, I hold the compromise act to have been void; and, consequently, that the plaintiff, ScottScott , can claim no benefit under it.
For the reasons above stated, I concur with my brother judges that the plaintiff, ScottScott , is a slave, and was so when this suit was brought.