The point made in the appellant's instruction, which was not given by the court below, will first be considered: That if Dr. Emerson (who was the owner of the slaves Dred and Harriet, and who was also a Surgeon in the United States army) owned said slaves, previous to his reception of the order, and took said slaves with him as domestic servants, and they remained at those posts, Rock Island and Fort Snelling, until they voluntarily returned to St. Louis, in a slave State, they are now not free but slaves. We propose to give a slight review of the cases, that have been decided in our own court, upon the direct and collateral questions involved in this case
1. The first case, adjudicated in our courts, is the case of Winny vs. Whitesides,
1 Mo. 331. There is not a single authority quoted in the opinion of Mr. Justice Tompkins, who, we shall discover in the examination of later cases, was the great apostle of freedom at that day. Indeed, it is fair to presume, from such sentences as
The question here decided is, that the slave was entitled to his freedom by virtue of the ordinance of 1787, from a residence in the Territory of Illinois, and that the rights of the master would not re-attach on finding his slave in Missouri.
2. Mary vs. Tiffin & Menard,
1 Mo. Rep. 5212, Cons. on Ord. of 1787. The child of a slave, born in Illinois after the ordinance took effect, is free.
3. LaGrange vs. Chouteau,
2 Mo. Rep. 193, opinion of Mr. Justice Wash. Ord of 1787. Eight or nine days residence in Illinois not sufficient to entitle a slave to freedom, under the ordinance.
4. Mitty vs. Smith,
2 Mo. Rep. 324, residence in Illinois. Mr. Justice Tompkins decided this case upon the authority of previous judicial construction of the ordinance of 1787, and although the facts in this case are subsequent to the passage of the Mo. Comp. act of 1820, that law was in no way discussed or considered.
5. Theotiste vs. Chouteau,
2 Mo. 1165, Mr. Justice Tompkins. A slave born in 1782 in Illinois, was not enfranchised by the ordinance of 1787; the right to hold such slave being a vested right under the Virginia cession, the ordinance was not retroactive in its operation.
6. Milly vs. Smith,
2 Mo. Rep. 1396, Justice McGirk.
7. Vincent vs. Duncan,
2 Mo. Rep. 1747. The constitution of the State of Illinois, ratified by Congress3d December, 1818, provides, that slaves may be hired out, from year to year to labor at salines without thereby working their freedom. The ordinance of 1787 cannot control the provisions of this State's constitution (see Strader vs. Graham,
10 Howard 828.) Nor can a slave, by himself, acquire either on permanent settlement, or regular domicil, yet,
We confess our inability to perceive, either the reason, the law or consitency of the dicta containd in the above decision, as logical deductions from the premises laid down.
8. Ralph vs. Duncan,
3 Mo. 1389 (Tompkins) Ord. of 1787. We have no doubt, that for the purposes of self government, the constitution of Illinois might have been well in force from the time of its adoption, but, for the purpose of the present case, we incline to limit its effect to the time when Congress assented to the admission of the State into the Union, 3d December 1818.
9. Julia vs. McKinney, 3 Mo. 193, McGirk, Justice. Interpretation of the constitution of Illinois. Plaintiff's claim for freedom in this case, from the 6th article of the constitution of illinois, which declares, that neither slavery nor involuntary servitude shall hereafter be introduced into this State, otherwise than for the punishment of crimes whereof the party shall have been duly convicted. The article then goes on to make provision for the hiring of slaves from another State, to wit: "That no person bound to labor in any other State shall be hired to labor in this State, except within the tract reserved for salt works," and further recites, that any violation of this article shall effect the emancipation of such persons from their obligation to service. Plaintiff's mistress, emigrating from Kentucky, took the plaintiff, Julia, then a slave, with her, and hiring her out for about a month, subsequently sold her in St. louis to defendant. Henld, that the above article of the constitution worked her freedom.
10. Natt vs. Rudelle, 3 Mo. Rep. 282, Mr. Justice Tompkins here settles an instruction, as to the consent of the master to the residence of the slave in a free State, being necessary to work his freedom.
11. Rachael vs. Walker, 4 Mo. Rep. 351 ordinance of 1787, is a case that is more clearly analagous to the one now under consideration, than has yet been cited. The resppondent was an officer, residing in the then Michigan Territory; a slave was bought in St. Louis and sent to him, and notwithstanding the point made by Hamilton R. Gamble, Esq., "that an officer of the U.S. Army was such a person as could not acquire such a domicil in any other than the State of which he is an inhabitant, when appointed, as is necessary under the former decision of this court to work the freedom of a slave. Mr. Justice McGirk held, that by operation of the ordinance and the previous decisions of the court, Rachael was fre, and that the fact of his being an officer could not create an exception in his favor. This case and the present one, that we are now discussing, are identical, with this exception, that in the former, temporarily staying in a territory claimed to be free, sent to a slave State and purchased a servant, and she was sent to him. In the latter, Dr. Emerson owned the slave Dred, and was, at the time, living where, by the law and the consitution, slavery was recognezed before he received the order to go into any other territory. Still, we are free to admit, that this distinction is of no avail, if the opinion of Mr. Justice McGirk is considered good law. It covers the entire ground, as to the plea of domicil and necessity, and we are incluned to think, that Mr. Justice McGirk, in his anxiety to settle the question, which, he says, the "ingenuity of counsel never would concede," has journeyed out of the record, in his zeal to support the authority of the decisions of this court.
12. Wilson vs. Melvin, 4 Mo. Rep. 592—seems to have been the closing effort, by counsel, to protect the rights of the owners of slave property, and from the opinions of Mr. Justice Thompkins, it might well be concluded, that any further argument was useless. The defendant moved from Tennessee to the west, whether to Illinois or Missouri does not clearly appear, and while traveling through Illinois, was informed, that he could not hold slaves in that State. He accordingly took every precaution to prevent the forfeiture of his property; he staid some two or three weeks, visiting his children in St. Clair county, regused to unload his wagons containing his family good, regused to hire servants or to allow them to do any labor. When he had finished his visit he concluded his journey and hired out his servants in St. Louis. The court held, that this was introducing slavery in Illinois, and that the constitution of Illinois was obligatory upon the courts in Missouri, and which, by its provisions, has worked the freedom of Wilson, the appellant. Nothing is said in the argument of counsel or the opinion of the court, of the ordinance of 1787 or the Missouri compromise act of 1820. On the contrary, it appears, that the counsel relied solely upon the violation of the constitution of Illinois, consequent upon the introduction of slavery within its borders. This case was decided at the June Term 1837. The question of freedom, as a consequence of residence in free territory, was not again mooted until the January Term of this court 1845. When the court seems to have come back to the consideration of Missouri law, leaving the enforcement of other State constitutions with their penal laws, to their own tribunals, where they should ever be allowed to remain.
13. Choteau vs. Pierre, 9 Mo. Rep. 3, Justice Scott. The questions here decided, applicable to the case under consideration, are that the ordinance of 1787 had no force in any post or precinct of the N.W. Territory in possession of Great Britain, prior to 1796, and that a slave, held prior to that time within such post, acquired no right to his freedom by virtue of such ordinance.
14. Charlotte vs. Choteau, 11 Mo. Rep. 194, endorses the decision in the case just quoted, and adds thereto, that "whatever may be the policy of other governments, it has not been the policy of this State, to favor the liberation of negroes from that condition, in which the laws and usages have placed the mass of their species.
These are all the decisions that have been made in our own court, upon the questions, direct and collateral, involved in this cause.
In none of these cases do we find, after careful examination, that the authority of the ordinance of 1787 was questioned. It was taken for granted, by the court and counsel, that it was yet, in full force and vigor, the law of the land. Nor was the voluntary return of the slaves to their status of slavery (with but one exception) considered as in any way effecting the rights which it was supposed they had acquired by the operation of that ordinance, or the local and foreign laws of neighboring and free States. The dictum, "once a free man, always a free man," though founded about as deeply in law, history and reason as, that "all men are born free and equal," was received with equally blind faith, and these two points, which presented, in fact, the principle issues, were considered (if at all) as unimportant and ineffectual to protect the rights of citizens of slave States.
The main questions then, which are decisive of this action, we enter upon, unentrammelled by local law and local decisions.
1. The ordinance of 1787 was, upon the adoption of the constitution of the United States, functus officit .
2. That the Missouri compromise act, so far as it relates to freedom or slavery, is local, having solidity only north of the line of 36 deg 30 min. Was a compromise acquiesced in by the people of Missouri, under protest and so far as it endeavors or intends to interfere with the laws of slavery in the sourther States, may be and ought to be disregarded, and that before this court should recognize any of the rights of freedom claimed under it, those rights should first be enforced and perfected by the tribunals of that comity north of the line of 36 deg 30 min., and even then the comity that calls upon them so to act has no remarkable sanction.
3. This court ought not, either in comity, equity or reason, to consider, interpret or enforce foreign constitutions and laws, which, penal in their nature, work the forfeiture of the property of our citizens.
4. That Dr. Emerson, the respondent, did not violate the compromise act of 1820, by obeying the directions of his government, ordering him to Rock Island and Fort Snelling, and taking with him his property, recognized as such by the constitution of the United States.
5. That the voluntary return of the slave Dred, to the status of slavery, places him under the operation of our local laws, and the rights of his master (if ever divested) re-attach the moment they are again in a State that recognizes the peculiar institution of domestic slavery.
We deem it unnecessary to argue the first point, made as it has been already, considered and decided by the highest tribunal known to our government, whose especial province it is to interpret and enforce the laws of Congress. That tribunal in the recent case of Strader vs. Graham, 11 How 82, held as follows, (referring also the cases of Pollard ns. Hogan, 3 How 212; Permoli vs. First Municipality, 3 How 589, (they say in concluding:) "As we have already said it" (the ord. of 1787) "ceased to be in force upon the adoption of the constitution, and cannot now be the source of jurisdiction of description in this court."
Neither the force of reasoning, when examined, nor the authority of the case will, we imagine, be questioned, and we pass to the second point:
The authority and effect of the Missouri compromise of 1820
We deem it necessary briefly to recur to the history of that act, although to your Honors who have aided in making the history of our State, who can truthfully as well as poetically say "magna pars quorum guimus, it may seem like a twice told tale, not I hope veexing the ear of a drowsy man.
By treaty, concluded 30 April 1803, the United States acquired the title to Louisiana; Oct. 31th of the same year, the President was authorized to take possession. By act of Congress of same date Louisiana was organized as two Territories. North of the 33 deg. parallel [ parrallel ] was the District of Louisiana, South was the Territory of Orleans. The District of Louisiana, changed by act of Congress to the Territory of Louisiana, and later to the Territory of Missouri was by the act of 4th June 1812, finally settled in its government, and duly established on the usual territorial basis. Rapidly increasing in wealth, population and power, Missouri claimed admission into the Union on an equally with her sister States. Then commenced the agitation, the history, objects and effects of which you Honors are as familiar with as with household words. If the historians and writers of the day are to be believed, it was deep seated and wide spread excitement, that for a long time threatened the existence of the Union and the perpetuity of free institutions. It was the periodical appearance of an epidemical disease, a species of "Black Vomit" that ever has and will, we hope, continue to carry unfledged statesmen and "higher law" demagogues to the grave of political oblivion. With an earnest desire to calm the storm that has been awakened, Missouri, under protest accepted the compromise act of the great statesmen who originated it, and neither waiving her just views of the constitutional power of Congress to impose the condition, nor to recognize the right of any created being to control or weaken in any manner her State rights, she came into the Union.
In passing whatever may be our views of the expediency of compromise in questions of legal or moral right, we cannot refrain from paying an humble tribute to the patriotism, sincerity, eloquence and honesty of purpose of the statesmen who, as the father of the compormise adjustments, has so often ruled the whirlwind of popular fury. Then his star had just appeared in the east—it has approached and passed the zenith of its power, and now is slowly sinking in the western horizon. "We discern no paling of its intellectual fires" —it shines with an effulgence, not dazzling and brilliant as in its meridian spendor, but like the mellow light of the harvest-moon—mild, frutifying, peaceful. It will soon pass away forever, and may there be both friend and foe, who will unite in sorrow over the tomb of Henry Clay in wishing
The best interpretation of the intent of Congress in creating a law, is found in the preamble and style of the act itself, which, when the sense is obscure often throws light which the text does not give. The act of 1820 was an "act to authorize the people of the Missouri Territory to form a constitution and State government, and for the admission of such State into the Union on an equal footing with the original States, and to prohibit slavery in certain territories." After making provision for boundaries, a convention, election, &c., &c., it goes on to enact in sec. 8, "That in all that territory ceded by France to the United States under the name of Louisiana, which lies north of thirty-six degrees and thirty minutes north latitude, not included within the limits of the State contemplated by this act, slavery and involuntary servitude, otherwise than in punishment of crimes, whereof the parties shall have been duly convicted, shall be, and is hereby forever prohibited: Provided always, that any person escaping into the same from whom labor or service is lawfully claimed, in any State or territory of the United States, such fugitives may be lawfully reclaimed and conveyed to the person claiming his or her labor or service aforesaid."
Admitting for the sake of argument, that the Congress had the constitutional power to
enact this section of "the law, we maintain that it is entirely local in this provision, and by express reservation Missouri is exempted from the operation. "Shall be and the same is forever prohibited." Where? Not in Missouri. What? Involuntary servitude. How to be determined? By every court in every State, or by those courts that are created in the free territories thus made.
Suppose Congress should pass a law declaring that the keeping of black horses, a species of property existing in Missouri and recognized by the constitution of the United States and of Missouri "shall be and the same is hereby prohibited in the territory of Utah." The same government that passes the law through the executive department, orders an officer, who unfortunately owns a black horse, that he can neither sell, loose nor give away, ot the territory of Utah, and he takes with him his said horse (I admit that the horse, if there were horses abolitionists there, would get his freedom in Utah;) but when he comes back here and asks you to give him up, would you di it? This is perhaps a strong and course illustration, but is it not a case in point.
That laws of Congress are binding upon us because we helped to make them, and because htey are the laws of the land, obligatory upon all the people, is admitted with a saying. Justice Tompkins thought, that the constitution of Illinois worked the freedom of a slave in our couts, and why would not the fundamental law of France, England and St. Domingo, not more foreighn to us that some of the northern States, on the subject of slavery. Laws of Congress punish mail robbery, counterfeiting the United States coin, breach of the revenue laws, and yet they are not claims punishable by our local laws. Our courts will not enforce them but leave them to the United States tribunals.
We are acting in the capacity of State courts, mostly concerned with local laws and sectional matters and have no tribunal to judge fully and finally of the extent and force of their obligation. The same power that made these U.S. laws, constituted courts to interpret and enforce them. Hence it is that when we do consider and interpret United States law, she claims the right to examine our decision and pronounce upon its correctness. Take this particular law. It has nothing to operate on in Missouri — no force here. It referred at this time of its enactment to the territory of Missouri; outside of, and beyond the limits of this State's jurisdiction. In United States territory, governed exclusively by United States laws, interpreted by United States tribunals, it was a court, the sole exclusive jurisdiction of which resided in Congress, representing the sovereignty of the people. They made its laws and moulded its government. Let them enforce its edicts.
In support of the fifth point—That the voluntary return of the slave Dred, to the status of slavery, places him under the operation of our local laws, and the rights of his master (if ever divested) re-attach the moment they are again in a slave State, that recognizes the peculiar institution of domestic slavery, the court is referred to the following authorities: Slave, Grace, 2 Hay. Adm. Rep.; Strader vs. Graham, 5 Ben monroe 1812-3; Story's Conf. Laws, section 93.
Adding thereto the words of wisdom contained in the opinion of Chf. Jus. Napton, in Charlotte vs. Choteau 11 Mo. Rep. 200: "Neither sound policy nor enlightened philanthropy should encourage in a slaveholding State, the multiplication of a race, whose condition could be neither that of freemen nor slaves, and whose existence and increase in this anomalous character, without promoting their individual comfort or happiness, tends only to dissatisfy and corrupt those of their own race and color remaining in a state of servitude."