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 Missouri, the property of Dr. Emerson, a surgeon in the army of the United States. In 1834, his master took him to the military station at Rock Island, on the border of Illinois, and in 1836 to Fort Snelling, in the present Minnesota, then Wisconsin, Territory. While at Fort Snelling, 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 Missouri, and the other after their return to that State.
Since 1838, the plaintiff and the members of his family have been in Missouri 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. Emerson, denied the jurisdiction of the Circuit 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 Missouri to maintain a suit in the Circuit 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 Missouri,
in company with his master, in Illinois
and Minnesota, and this effect is to be ascertained by a reference
to the laws of Missouri.
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., 23460;
Cowp. S. C., 16161.)
The Constitution of Missouri recognises slavery as a legal condition, extends guaranties to the masters of slaves, and invites
The Federal Constitution and the acts of Congress 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 Missouri, upon his return to the State.
12 B. M. Ky. R., 54562; Fosterv.Foster,
10 Gratt. Va. R., 48563;
4 Har. and McH. Md. R., 29564; Scottv.Emerson,
15 Misso., 57665;
4 Rich. S. C. R., 18666;
17 Misso., 43467;
15 Misso., 59668;
5 B. M., 17369;
8 B. M., 54070,
9 B. M., 56572;
5 Leigh, 61473;
1 Raud., 1574;
18 Pick., 19375.)
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 courts—cases 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
2 A. K. M.76; Hernyv.Decker,
4 Mart., 38578;
1 Misso., 47279; Hunterv.Fulcher,
I do not impugn the authority of these cases. No evidence is found in the record to establish the existence of a domicil
11 L. and Eq., 681;
6 Exch., 21782;
6 M. and W., 51183;
2 Curt. Ecc. R., 36884.)
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 domicil—relations which were never questioned during their absence from that State— 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 Illinois or Minnesota was indelibly impressed upon the slave, and its consequences carried into Missouri, 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, 60185;
Calh. Sp., 378;
Reports of the Com. U. S. and G. B., 187, 238, 241.)
The public law of Europe formerly permitted a master to reclaim his bondsman, within a limited period, wherever he could find him, and one of the capitularies of Charlemagne abolishes the rule of prescription. He directs,
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 Europe commenced in the enactment of laws of prescription in favor of privileged communes. Bremen, Spire, Worms, Vienna, and Ratisbon, in Germany; Carcassonne, Béziers, Toulouse, and Paris, in France, acquired privileges on this subject at an early period. The ordinance of William the Conqueror, that a residence of any of the servile population of England, for a year and a day, without being claimed, in any city, burgh, walled town, or castle of the King, should entitle them to perpetual liberty, is a specimen of these laws.
The earliest publicist who has discussed this subject is Bodin, a jurist of the sixteenth century, whose work was quoted in the early discussions of the courts in France and England on this subject. He says:
15 Causes Celébrés, p. 186;
2 Masse Droit Com., sec. 5887,) and were reproduced before Lord Mansfield, in the cause of Somersett, in 1772. Of the cases cited by Bodin, it is to be observed that Charles V of France exempted all the inhabitants of Paris 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:
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 Paris furnishes but little support for the boast that she was a "sacro sancta civitas," where liberty always had an asylum, or for the
The case of Somersett was that of a Virginia slave carried to England by his master in 1770, and who remained there two years. For some cause, he was confined on a vessel destined to Jamaica, where he was to be sold. Lord Mansfield, upon a return to a habeas corpus, states the question involved.
The question to be raised with the opinion of Lord Mansfield, therefore, is not in respect to the incongruity of the two systems, but whether slavery was absolutely contrary to the law of England; 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 England 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 Richard II, and also of Henry VIII, refused to adopt a general law of emancipation. Acts of emancipation by the last-named monarch and by Elizabeth 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 Somersett 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
15 George III, chap. 28,)
, had been passed upon the subject of personal slavery. These facts have led the most eminent civilian of England 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 merely—that is, the public policy—were found to be contrary to
the law of slavery. The case of the slave Grace, (
2 Hagg.88,) with four others, came before Lord Stowell in 1827, by appeals from the West India vice admiralty courts. They were cases of slaves who had returned to those islands, after a residence in Great Britain, and where the claim to freedom was first presented in the colonial forum. The learned judge in that case said:
The decision of Lord Mansfield was,
The decision of Lord Stowell is, that the authority of the English laws terminated when the slave departed from England. That the laws of England were not imported into Antigua, 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 Great Britain.
The complaint here, in my opinion, amounts to this: that the judicial
tribunals of Missouri 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 Illinois, or
those passed by Congress for Minnesota, in their stead.
The eighth section of the act of Congress of the 6th of March, 1820, (
3 Statutes at Large, 54589,) entitled, "An act to authorize the people of Missouri 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 Missouri felt themselves constrained to refuse. That section of the act prohibits slavery in the district of country west of the Mississippi, north of thirty-six degrees thirty minutes north latitude, which belonged to the ancient province of Louisiana, not included in Missouri.
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 Congress to adopt the section of the act above cited must
therefore depend upon some condition of the Territories 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
It is conceded, in the decisions of this court, that Congress may secure the rights
of the United States 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., 21290;
12 How., 191;
1 Pet., 51192;
13 P., 43693;
16 H., 16494.)
But the recognition of a plenary power in Congress 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 Johnsonv.McIntosh,
8 Wheat., 59595—
54396,) they say:
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 Pennsylvania, in 1774: 1st.
1 Jour. Cong., 3297.)
The unanimous consent of the people of the colonies, then,
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.
3 Dall., 19998;
4 Cr., 21299.)
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,
12 Wh., 523100.)
6 C. R., 87101.)
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
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 Congress, 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 Congress, 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 Congress; 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 Territories should be
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 Congress 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. Mr. Madison said, in a writing nearly contemporary, but before the confirmatory act of Virginia,
Federalist, No. 38.) Richard Henry Lee, one of the committee who reported the ordinance to Congress,
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 United States, 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 United States and each of the States from any prejudice. The Maryland members revived the controversy in regard to the Crown lands of the Southwest. There was nothing to indicate any reference to a government of Territories 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,
The compacts of cession by North Carolina and Georgia 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
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 Georgia was made, Congress 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 Georgia, and to establish a Government in the Mississippi Territory, were adopted. A Territorial Government was organized, between the Chattahoochee and Mississippi rivers. This was within the limits of Georgia. These acts dismembered Georgia. They established a separate Government upon her soil, while they rather derisively professed,
This court have repeatedly affirmed the paramount claim of Georgia to this Territory.
They have denied the existence of any title in the United States.
6 C. R., 87102;
12 Wh., 523103;
3 How., 212104;
13 How., 381105.) Yet these acts were cited in the argument as precedents to show the power of Congress in the Territories. 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 United States. These Constitutions were framed by the concurrence of the States making the cessions, and Congress, 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
The acquisition of Louisiana, in 1803, introduced another system into the United States. This vast province was ceded by Napoleon, and its population had always been accustomed to a viceroyal Government, appointed by the Crowns of France or Spain. 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. Gouverneur Morris. In 1803, he was appealed to for information in regard to its meaning. He answers:
3 Mor. Writ., 185106.) A few days later, he makes another reply to his correspondent.
3 Mor. Writ., 192107.) The first Territorial Government of Louisiana 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. *8
[Note: * Mr. Varnum said:
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 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 Missouri 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 Congress. The sentiment is now general, if not universal, that Congress 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 Grovesv.Slaughter, (
15 Pet.108,) the Chief Justice said:
3 How., 212109,) the court say:
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 Missouri involved a denial of the Constitutional relations between the people of the States and Congress, 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 Congress. They would not have been admitted to "this Union". Their sovereignty would have been restricted by Congress 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 Congress. 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 Territories which subject the capacity and status of persons within their limits to the direct action of Congress. Can Congress determine the condition and status of persons who inhabit the Territories?
[Note: * Mr. Jefferson wrote:
The Constitution permits Congress to dispose of and to make all needful rules and regulations respecting the territory or other property belonging to the United States. This power applies as well to territory belonging to the United States within the States, as beyond them. It comprehends all the public domain, wherever it may be. The argument is, that
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:
This sophism imposed upon a portion of the patriots of that day. Chief Justice Marshall, in his life of Washington, says
Marsh. Wash., v. 2, p. 75, 76.)
But the more eminent men of Massachusetts rejected it; and another patriot of the time employs the instance to warn us of
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 Congress 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
journals of the Federal Convention in 1819, of the debates reported by Mr. Madison 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 Territories, under the grant to
ordinance of 1787 depended upon the action of the Congress of the Confederation, the assent of the State of Virginia, 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. John Quincy Adams, at a later period, says of the last act,
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
The Norman lawyers of William the Conqueror 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,
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
These conferred on their mandatory, Congress, 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
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 Government—these
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 Congress within the territorial subdivisions, or over the persons who inhabit them. Congress may exercise there all the powers of Government which belong to them as the Legislature of the United States, of which these Territories make a part. (Loughboroughv.Blake,
5 Wheat., 317110.) 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 United States 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
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 Congress 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 United States, 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 Congress 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 Congress. Wherever a master is entitled to go within the United States, his slave may accompany him, without any impediment from, or fear of, Congressional
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 Congress the municipal sovereignty in the Territories 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 Congress to dissolve the relations of the master and slave on the domain of the United 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 Minnesota Territory, or after their return to Missouri.
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 Missouri, and he had been in Missouri 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 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
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 States, his is an incapacity to sue in their courts, while, by the laws of Missouri, 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 States, and leave to the plaintiff all his rights in Missouri. I think the judgment should be affirmed, on the ground that the Circuit Court had no jurisdiction, or that the case should be reversed and remanded, that the suit may be dismissed.