Report of the Decision of the Supreme Court of the United States , and the Opinions of the Judges Thereof, in the Case of Dred Scott versus John F.A. Part 19

If, in Missouri, the plaintiff were held to be a slave, the validity and operation of his contract of marriage must be denied. He can have no legal rights; of course, not those of a husband and father. And the same is true of his wife and children. The denial of his rights is the denial of theirs. So that, though lawfully married in the Territory, when they came out of it, into the State of Missouri, they were no longer husband and wife; and a child of that lawful marriage, though born under the same dominion where its parents contracted a lawful marriage, is not the fruit of that marriage, nor the child of its father, but subject to the maxim, _partus sequitur ventrem_.

It must be borne in mind that in this case there is no ground for the inquiry, whether it be the will of the State of Missouri not to recognise the validity of the marriage of a fugitive slave, who escapes into a State or country where slavery is not allowed, and there contracts a marriage; or the validity of such a marriage, where the master, being a citizen of the State of Missouri, voluntarily goes with his slave, _in itinere_, into a State or country which does not permit slavery to exist, and the slave there contracts marriage without the consent of his master; for in this case, it is agreed, Dr.

Emerson did consent; and no further question can arise concerning his rights, so far as their a.s.sertion is inconsistent with the validity of the marriage. Nor do I know of any ground for the a.s.sertion that this marriage was in fraud of any law of Missouri. It has been held by this court, that a bequest of property by a master to his slave, by necessary implication ent.i.tles the slave to his freedom; because, only as a freeman could he take and hold the bequest. (Legrand _v._ Darnall, 2 Pet. R., 664.) It has also been held, that when a master goes with his slave to reside for an indefinite period in a State where slavery is not tolerated, this operates as an act of manumission; because it is sufficiently expressive of the consent of the master that the slave should be free. (2 Marshall's Ken. R., 470; 14 Martin's Louis. R., 401.)

What, then, shall we say of the consent of the master, that the slave may contract a lawful marriage, attended with all the civil rights and duties which belong to that relation; that he may enter into a relation which none but a free man can a.s.sume--a relation which involves not only the rights and duties of the slave, but those of the other party to the contract, and of their descendants to the remotest generation? In my judgment, there can be no more effectual abandonment of the legal rights of a master over his slave, than by the consent of the master that the slave should enter into a contract of marriage, in a free State, attended by all the civil rights and obligations which belong to that condition.

And any claim by Dr. Emerson, or any one claiming under him, the effect of which is to deny the validity of this marriage, and the lawful paternity of the children born from it, wherever a.s.serted, is, in my judgment, a claim inconsistent with good faith and sound reason, as well as with the rules of international law. And I go further: in my opinion, a law of the State of Missouri, which should thus annul a marriage, lawfully contracted by these parties while resident in Wisconsin, not in fraud of any law of Missouri, or of any right of Dr.

Emerson, who consented thereto, would be a law impairing the obligation of a contract, and within the prohibition of the Const.i.tution of the United States. (See 4 Wheat., 629, 695, 696.)

To avoid misapprehension on this important and difficult subject, I will state, distinctly, the conclusions at which I have arrived. They are:

_First._ The rules of international law respecting the emanc.i.p.ation of slaves, by the rightful operation of the laws of another State or country upon the _status_ of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State.

_Second._ The laws of the United States, const.i.tutionally enacted, which operated directly on and changed the _status_ of a slave coming into the Territory of Wisconsin with his master, who went thither to reside for an indefinite length of time, in the performance of his duties as an officer of the United States, had a rightful operation on the _status_ of the slave, and it is in conformity with the rules of international law that this change of _status_ should be recognised everywhere.

_Third._ The laws of the United States, in operation in the Territory of Wisconsin at the time of the plaintiff's residence there, did act directly on the _status_ of the plaintiff, and change his _status_ to that of a free man.

_Fourth._ The plaintiff and his wife were capable of contracting, and, with the consent of Dr. Emerson, did contract a marriage in that Territory, valid under its laws; and the validity of this marriage cannot be questioned in Missouri, save by showing that it was in fraud of the laws of that State, or of some right derived from them; which cannot be shown in this case, because the master consented to it.

_Fifth._ That the consent of the master that his slave, residing in a country which does not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which belong to that condition, is an effectual act of emanc.i.p.ation. And the law does not enable Dr. Emerson, or any one claiming under him, to a.s.sert a t.i.tle to the married persons as slaves, and thus destroy the obligation of the contract of marriage, and b.a.s.t.a.r.dize their issue, and reduce them to slavery.

But it is insisted that the Supreme Court of Missouri has settled this case by its decision in Scott _v._ Emerson, (15 Missouri Reports, 576;) and that this decision is in conformity with the weight of authority elsewhere, and with sound principles. If the Supreme Court of Missouri had placed its decision on the ground that it appeared Dr.

Emerson never became domiciled in the Territory and so its laws could not rightfully operate on him and his slave; and the facts that he went there to reside indefinitely, as an officer of the United States, and that the plaintiff was lawfully married there, with Dr. Emerson's consent, were left out of view, the decision would find support in other cases, and I might not be prepared to deny its correctness. But the decision is not rested on this ground. The domicil of Dr. Emerson in that Territory is not questioned in that decision; and it is placed on a broad denial of the operation, in Missouri, of the law of any foreign State or country upon the _status_ of a slave, going with his master from Missouri into such foreign State or country, even though they went thither to become, and actually became, permanent inhabitants of such foreign State or country, the laws whereof acted directly on the _status_ of the slave, and changed his _status_ to that of a freeman.

To the correctness of such a decision I cannot a.s.sent. In my judgment, the opinion of the majority of the court in that case is in conflict with its previous decisions, with a great weight of judicial authority in other slaveholding States, and with fundamental principles of private international law. Mr. Chief Justice Gamble, in his dissenting opinion in that case, said:

"I regard the question as conclusively settled by repeated adjudications of this court; and if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them, than I would any other series of decisions by which the law upon any other question had been settled. There is with me nothing in the law of slavery which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary excitements which have gathered around it.... But in the midst of all such excitement, it is proper that the judicial mind, calm and self-balanced, should adhere to principles established when there was no feeling to disturb the view of the legal questions upon which the rights of parties depend."

"In this State, it has been recognised from the beginning of the Government as a correct position in law, that the master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emanc.i.p.ates his slave." (Winney _v._ Whitesides, 1 Mo., 473; Le Grange [Transcriber's Note: La Grange] _v._ Chouteau, 2 Mo., 20; Milley _v._ Smith, Ib., 36; Ralph _v._ Duncan, 3 Mo., 194; Julia _v._ McKinney, Ib., 270; Nat _v._ Ruddle, Ib., 400; Rachel _v._ Walker, 4 Mo., 350; Wilson _v._ Melvin, 592.)

Chief Justice Gamble has also examined the decisions of the courts of other States in which slavery is established, and finds them in accordance with these preceding decisions of the Supreme Court of Missouri to which he refers.

It would be a useless parade of learning for me to go over the ground which he has so fully and ably occupied.

But it is further insisted we are bound to follow this decision. I do not think so. In this case, it is to be determined what laws of the United States were in operation in the Territory of Wisconsin, and what was their effect on the _status_ of the plaintiff. Could the plaintiff contract a lawful marriage there? Does any law of the State of Missouri impair the obligation of that contract of marriage, destroy his rights as a husband, b.a.s.t.a.r.dize the issue of the marriage, and reduce them to a state of slavery?

These questions, which arise exclusively under the Const.i.tution and laws of the United States, this court, under the Const.i.tution and laws of the United States, has the rightful authority finally to decide.

And if we look beyond these questions, we come to the consideration whether the rules of international law, which are part of the laws of Missouri until displaced by some statute not alleged to exist, do or do not require the _status_ of the plaintiff, as fixed by the laws of the Territory of Wisconsin, to be recognised in Missouri. Upon such a question, not depending on any statute or local usage, but on principles of universal jurisprudence, this court has repeatedly a.s.serted it could not hold itself bound by the decisions of State courts, however great respect might be felt for their learning, ability, and impartiality. (See Swift _v._ Tyson, 16 Peters's R., 1; Carpenter _v._ The Providence Ins. Co., Ib., 495; Foxcroft _v._ Mallet, 4 How., 353; Rowan _v._ Runnels, 5 How., 134.)

Some reliance has been placed on the fact that the decision in the Supreme Court of Missouri was between these parties, and the suit there was abandoned to obtain another trial in the courts of the United States.

In Homer _v._ Brown, (16 How., 354,) this court made a decision upon the construction of a devise of lands, in direct opposition to the unanimous opinion of the Supreme Court of Ma.s.sachusetts, between the same parties, respecting the same subject-matter--the claimant having become nonsuit in the State court, in order to bring his action in the Circuit Court of the United States. I did not sit in that case, having been of counsel for one of the parties while at the bar; but, on examining the report of the argument of the counsel for the plaintiff in error, I find they made the point, that this court ought to give effect to the construction put upon the will by the State court, to the end that rights respecting lands may be governed by one law, and that the law of the place where the lands are situated; that they referred to the State decision of the case, reported in 3 Cus.h.i.+ng, 390, and to many decisions of this court. But this court does not seem to have considered the point of sufficient importance to notice it in their opinions. In Millar _v._ Austin, (13 How., 218,) an action was brought by the endorsee of a written promise. The question was, whether it was negotiable under a statute of Ohio. The Supreme Court of that State having decided it was not negotiable, the plaintiff became nonsuit, and brought his action in the Circuit Court of the United States. The decision of the Supreme Court of the State, reported 4 Ves., L.J., 527, was relied on. This court unanimously held the paper to be negotiable.

When the decisions of the highest court of a State are directly in conflict with each other, it has been repeatedly held, here, that the last decision is not necessarily to be taken as the rule. (State Bank _v._ Knoop, 16 How., 369; Pease _v._ Peck, 18 How., 599.)

To these considerations I desire to add, that it was not made known to the Supreme Court of Missouri, so far as appears, that the plaintiff was married in Wisconsin with the consent of Dr. Emerson, and it is not made known to us that Dr. Emerson was a citizen of Missouri, a fact to which that court seem to have attached much importance.

Sitting here to administer the law between these parties, I do not feel at liberty to surrender my own convictions of what the law requires, to the authority of the decision in 15 Missouri Reports.

I have thus far a.s.sumed, merely for the purpose of the argument, that the laws of the United States, respecting slavery in this Territory, were const.i.tutionally enacted by Congress. It remains to inquire whether they are const.i.tutional and binding laws.

In the argument of this part of the case at bar, it was justly considered by all the counsel to be necessary to ascertain the source of the power of Congress over the territory belonging to the United States. Until this is ascertained, it is not possible to determine the extent of that power. On the one side it was maintained that the Const.i.tution contains no express grant of power to organize and govern what is now known to the laws of the United States as a Territory.

That whatever power of this kind exists, is derived by implication from the capacity of the United States to hold and acquire territory out of the limits of any State, and the necessity for its having some government.

On the other side, it was insisted that the Const.i.tution has not failed to make an express provision for this end, and that it is found in the third section of the fourth article of the Const.i.tution.

To determine which of these is the correct view, it is needful to advert to some facts respecting this subject, which existed when the Const.i.tution was framed and adopted. It will be found that these facts not only shed much light on the question, whether the framers of the Const.i.tution omitted to make a provision concerning the power of Congress to organize and govern Territories, but they will also aid in the construction of any provision which may have been made respecting this subject.

Under the Confederation, the unsettled territory within the limits of the United States had been a subject of deep interest. Some of the States insisted that these lands were within their chartered boundaries, and that they had succeeded to the t.i.tle of the Crown to the soil. On the other hand, it was argued that the vacant lands had been acquired by the United States, by the war carried on by them under a common Government and for the common interest.

This dispute was further complicated by unsettled questions of boundary among several States. It not only delayed the accession of Maryland to the Confederation, but at one time seriously threatened its existence. (5 Jour. of Cong., 208, 442.) Under the pressure of these circ.u.mstances, Congress earnestly recommended to the several States a cession of their claims and rights to the United States. (5 Jour. of Cong., 442.) And before the Const.i.tution was framed, it had been begun. That by New York had been made on the 1st day of March, 1781; that of Virginia on the 1st day of March, 1784; that of Ma.s.sachusetts on the 19th day of April, 1785; that of Connecticut on the 14th day of September, 1786; that of South Carolina on the 8th day of August, 1787, while the Convention for framing the Const.i.tution was in session.

It is very material to observe, in this connection, that each of these acts cedes, in terms, to the United States, as well the jurisdiction as the soil.

It is also equally important to note that, when the Const.i.tution was framed and adopted, this plan of vesting in the United States, for the common good, the great tracts of ungranted lands claimed by the several States, in which so deep an interest was felt, was yet incomplete. It remained for North Carolina and Georgia to cede their extensive and valuable claims. These were made, by North Carolina on the 25th day of February, 1790, and by Georgia on the 24th day of April, 1802. The terms of these last-mentioned cessions will hereafter be noticed in another connection; but I observe here that each of them distinctly shows, upon its face, that they were not only in execution of the general plan proposed by the Congress of the Confederation, but of a formed purpose of each of these States, existing when the a.s.sent of their respective people was given to the Const.i.tution of the United States.

It appears, then, that when the Federal Const.i.tution was framed, and presented to the people of the several States for their consideration, the unsettled territory was viewed as justly applicable to the common benefit, so far as it then had or might attain thereafter a pecuniary value; and so far as it might become the seat of new States, to be admitted into the Union upon an equal footing with the original States. And also that the relations of the United States to that unsettled territory were of different kinds. The t.i.tles of the States of New York, Virginia, Ma.s.sachusetts, Connecticut, and South Carolina, as well of soil as of jurisdiction, had been transferred to the United States. North Carolina and Georgia had not actually made transfers, but a confident expectation, founded on their appreciation of the justice of the general claim, and fully justified by the results, was entertained, that these cessions would be made. The ordinance of 1787 had made provision for the temporary government of so much of the territory actually ceded as lay northwest of the river Ohio.

But it must have been apparent, both to the framers of the Const.i.tution and the people of the several States who were to act upon it, that the Government thus provided for could not continue, unless the Const.i.tution should confer on the United States the necessary powers to continue it. That temporary Government, under the ordinance, was to consist of certain officers, to be appointed by and responsible to the Congress of the Confederation; their powers had been conferred and defined by the ordinance. So far as it provided for the temporary government of the Territory, it was an ordinary act of legislation, deriving its force from the legislative power of Congress, and depending for its vitality upon the continuance of that legislative power. But the officers to be appointed for the Northwestern Territory, after the adoption of the Const.i.tution, must necessarily be officers of the United States, and not of the Congress of the Confederation; appointed and commissioned by the President, and exercising powers derived from the United States under the Const.i.tution.

Such was the relation between the United States and the Northwestern Territory, which all reflecting men must have foreseen would exist, when the Government created by the Const.i.tution should supersede that of the Confederation. That if the new Government should be without power to govern this Territory, it could not appoint and commission officers, and send them into the Territory, to exercise there legislative, judicial, and executive power; and that this Territory, which was even then foreseen to be so important, both politically and financially, to all the existing States, must be left not only without the control of the General Government, in respect to its future political relations to the rest of the States, but absolutely without any Government, save what its inhabitants, acting in their primary capacity, might from time to time create for themselves.

But this Northwestern Territory was not the only territory, the soil and jurisdiction whereof were then understood to have been ceded to the United States. The cession by South Carolina, made in August, 1787, was of "all the territory included within the river Mississippi, and a line beginning at that part of the said river which is intersected by the southern boundary of North Carolina, and continuing along the said boundary line until it intersects the ridge or chain of mountains which divides the Eastern from the Western waters; then to be continued along the top of the said ridge of mountains, until it intersects a line to be drawn due west from the head of the southern branch of the Tugaloo river, to the said mountains; and thence to run a due west course to the river Mississippi."

It is true that by subsequent explorations it was ascertained that the source of the Tugaloo river, upon which the t.i.tle of South Carolina depended, was so far to the northward, that the transfer conveyed only a narrow slip of land, about twelve miles wide, lying on the top of the ridge of mountains, and extending from the northern boundary of Georgia to the southern boundary of North Carolina. But this was a discovery made long after the cession, and there can be no doubt that the State of South Carolina, in making the cession, and the Congress in accepting it, viewed it as a transfer to the United States of the soil and jurisdiction of an extensive and important part of the unsettled territory ceded by the Crown of Great Britain by the treaty of peace, though its quant.i.ty or extent then remained to be ascertained.[5]

[Footnote 5: _Note by Mr. Justice Curtis._ This statement that _some_ territory did actually pa.s.s by this cession, is taken from the opinion of the court, delivered by Mr. Justice Wayne, in the case of Howard _v._ Ingersoll, reported in 13 How., 405. It is an obscure matter, and, on some examination of it, I have been led to doubt whether any territory actually pa.s.sed by this cession. But as the fact is not important to the argument, I have not thought it necessary further to investigate it.]

It must be remembered also, as has been already stated, that not only was there a confident expectation entertained by the other States, that North Carolina and Georgia would complete the plan already so far executed by New York, Virginia, Ma.s.sachusetts, Connecticut, and South Carolina, but that the opinion was in no small degree prevalent, that the just t.i.tle to this "back country," as it was termed, had vested in the United States by the treaty of peace, and could not rightfully be claimed by any individual State.

There is another consideration applicable to this part of the subject, and ent.i.tled, in my judgment, to great weight.

The Congress of the Confederation had a.s.sumed the power not only to dispose of the lands ceded, but to inst.i.tute Governments and make laws for their inhabitants. In other words, they had proceeded to act under the cession, which, as we have seen, was as well of the jurisdiction as of the soil. This ordinance was pa.s.sed on the 13th of July, 1787.

The Convention for framing the Const.i.tution was then in session at Philadelphia. The proof is direct and decisive, that it was known to the Convention.[6] It is equally clear that it was admitted and understood not to be within the legitimate powers of the Confederation to pa.s.s this ordinance. (Jefferson's Works, vol. 9, pp. 251, 276; Federalist, Nos. 38, 43.)

[Footnote 6: It was published in a newspaper at Philadelphia, in May, and a copy of it was sent by R.H. Lee to Gen. Was.h.i.+ngton, on the 15th of July. (See p. 261, Cor. of Am. Rev., vol. 4, and Writings of Was.h.i.+ngton, vol. 9, p. 174.)]

The importance of conferring on the new Government regular powers commensurate with the objects to be attained, and thus avoiding the alternative of a failure to execute the trust a.s.sumed by the acceptance of the cessions made and expected, or its execution by usurpation, could scarcely fail to be perceived. That it was in fact perceived, is clearly shown by the Federalist, (No. 38,) where this very argument is made use of in commendation of the Const.i.tution.

Keeping these facts in view, it may confidently be a.s.serted that there is very strong reason to believe, before we examine the Const.i.tution itself, that the necessity for a competent grant of power to hold, dispose of, and govern territory, ceded and expected to be ceded, could not have escaped the attention of those who framed or adopted the Const.i.tution; and that if it did not escape their attention, it could not fail to be adequately provided for.

Any other conclusion would involve the a.s.sumption that a subject of the gravest national concern, respecting which the small States felt so much jealousy that it had been almost an insurmountable obstacle to the formation of the Confederation, and as to which all the States had deep pecuniary and political interests, and which had been so recently and constantly agitated, was nevertheless overlooked; or that such a subject was not overlooked, but designedly left unprovided for, though it was manifestly a subject of common concern, which belonged to the care of the General Government, and adequate provision for which could not fail to be deemed necessary and proper.

The admission of new States, to be framed out of the ceded territory, early attracted the attention of the Convention. Among the resolutions introduced by Mr. Randolph, on the 29th of May, was one on this subject, (Res. No. 10, 5 Elliot, 128,) which, having been affirmed in Committee of the Whole, on the 5th of June, (5 Elliot, 156,) and reported to the Convention on the 13th of June, (5 Elliot, 190,) was referred to the Committee of Detail, to prepare the Const.i.tution, on the 26th of July, (5 Elliot, 376.) This committee reported an article for the admission of new States "lawfully const.i.tuted or established."

Nothing was said concerning the power of Congress to prepare or form such States. This omission struck Mr. Madison, who, on the 18th of August, (5 Elliot, 439,) moved for the insertion of power to dispose of the unappropriated lands of the United States, and to inst.i.tute temporary Governments for new States arising therein.

On the 29th of August, (5 Elliot, 492,) the report of the committee was taken up, and after debate, which exhibited great diversity of views concerning the proper mode of providing for the subject, arising out of the supposed diversity of interests of the large and small States, and between those which had and those which had not unsettled territory, but no difference of opinion respecting the propriety and necessity of some adequate provision for the subject, Gouverneur Morris moved the clause as it stands in the Const.i.tution. This met with general approbation, and was at once adopted. The whole section is as follows: