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 9

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. "Here, the person of the slave himself," he says, "is the immediate subject of inquiry, Can any dominion, authority, or coercion, be exercised in this country, according to the American laws?" He answers: "The difficulty of adopting the relation, without adopting it in all its consequences, is indeed extreme, and yet many of those consequences are absolutely contrary to the munic.i.p.al law of England." Again, he says: "The return states that the slave departed, and refused to serve; whereupon, he was kept to be sold abroad." "So high an act of dominion must be recognised by the law of the country where it is used. The power of the master over his slave has been extremely different in different countries." "The state of slavery is of such a nature, that it is incapable of being introduced on any reasons, moral or political, but only by positive law, which preserves its force long after the reasons, occasion, and time itself, from whence it was created, are erased from the memory.

It is so odious, that nothing can be suffered to support it but positive law." That there is a difference in the systems of States, which recognise and which do not recognise the inst.i.tution of slavery, cannot be disguised. Const.i.tutional law, punitive law, police, domestic economy, industrial pursuits, and amus.e.m.e.nts, the modes of thinking and of belief of the population of the respective communities, all show the profound influence exerted upon society by this single arrangement. This influence was discovered in the Federal Convention, in the deliberations on the plan of the Const.i.tution. Mr.

Madison observed, "that the States were divided into different interests, not by their difference of size, but by other circ.u.mstances; the most material of which resulted partly from climate, but princ.i.p.ally from the effects of their having or not having slaves. These two causes concur in forming the great division of interests in the United States."

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 emanc.i.p.ation. Acts of emanc.i.p.ation 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 ill.u.s.trious jurists of the realm, and such slaves had been publicly sold for near a century in the markets of London. In the northern part of the kingdom of Great Britain there existed a cla.s.s of from 30,000 to 40,000 persons, of whom the Parliament said, in 1775, (15 George III, chap. 28,) "many colliers, coal-heavers, and salters, are in a state of slavery or bondage, bound to the collieries and salt works, where they work for life, transferable with the collieries and salt works when their original masters have no use for them; and whereas the emanc.i.p.ating or setting free the colliers, coal-heavers, and salters, in Scotland, who are now in a state of servitude, gradually and upon reasonable conditions, would be the means of increasing the number of colliers, coal-heavers, and salters, to the great benefit of the public, without doing any injury to the present masters, and would remove the reproach of allowing such a state of servitude to exist in a free country," &c.; and again, in 1799, "they declare that many colliers and coal-heavers still continue in a state of bondage." No statute, from the Conquest till the 15 George III, had been pa.s.sed 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 p.r.o.nounced 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.,) 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: "This suit fails in its foundation. She (Grace) was not a free person; no injury is done her by her continuance in slavery, and she has no pretensions to any other station than that which was enjoyed by every slave of a family. If she depends upon such freedom conveyed by a mere residence in England, she complains of a violation of right which she possessed no longer than whilst she resided in England, but which totally expired when that residence ceased, and she was imported into Antigua."

The decision of Lord Mansfield was, "that so high an act of dominion"

as the master exercises over his slave, in sending him abroad for sale, could not be exercised in England under the American laws, and contrary to the spirit of their own.

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 Const.i.tution 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 pa.s.sed 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, 545,) ent.i.tled, "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 p.r.o.nounce 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 lat.i.tude, 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 Const.i.tution is referred to as the only and all-sufficient grant to support this claim. It is, that "new States may be admitted by the Congress to this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States, or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress. The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Const.i.tution shall be so construed as to prejudice any claims of the United States, or of any particular State."

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 t.i.tles of the purchasers, and may organize Territorial Governments, with powers of legislation. (3 How., 212; 12 How., 1; 1 Pet., 511; 13 P., 436; 16 H., 164.)

But the recognition of a plenary power in 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 a.s.sisted us to define them. In Johnson _v._ McIntosh, (8 Wheat., 595--543,) [Transcriber's Note: modern citation form is 8 Wheat. 543, 595] they say: "According to the theory of the British Const.i.tution, all vacant lands are vested in the Crown; and the exclusive power to grant them is admitted to reside in the Crown, as a branch of the royal prerogative.

"All the lands we hold were originally granted by the Crown, and the establishment of a royal Government has never been considered as impairing its right to grant lands within the chartered limits of such colony."

And the British Parliament did claim a supremacy of legislation coextensive with the absoluteness of the dominion of the sovereign over the Crown lands. The American doctrine, to the contrary, is embodied in two brief resolutions of the people of Pennsylvania, in 1774: 1st. "That the inhabitants of these colonies are ent.i.tled to the same rights and liberties, within the colonies, that the subjects born in England are ent.i.tled within the realm." 2d. "That the power a.s.sumed by Parliament to bind the people of these colonies by statutes, in all cases whatever, is unconst.i.tutional, and therefore the source of these unhappy difficulties." The Congress of 1774, in their statement of rights and grievances, affirm "a free and exclusive power of legislation" in their several Provincial Legislatures, "in all cases of taxation and internal polity, subject only to the negative of their sovereign, in such manner as has been heretofore used and accustomed."

(1 Jour. Cong., 32.)

The unanimous consent of the people of the colonies, then, to the power of their sovereign, "to dispose of and make all needful rules and regulations respecting the territory" of the Crown, in 1774, was deemed by them as entirely consistent with opposition, remonstrance, the renunciation of allegiance, and proclamation of civil war, in preference to submission to his claim of supreme power in the territories.

I pa.s.s now to the evidence afforded during the Revolution and Confederation. The American Revolution was not a social revolution. It did not alter the domestic condition or capacity of persons within the colonies, nor was it designed to disturb the domestic relations existing among them. It was a political revolution, by which thirteen dependent colonies became thirteen independent States. "The Declaration of Independence was not," says Justice Chase, "a declaration that the United Colonies jointly, in a collective capacity, were independent States, &c., &c., &c., but that each of them was a sovereign and independent State; that is, that each of them had a right to govern itself by its own authority and its own laws, without any control from any other power on earth." (3 Dall., 199; 4 Cr., 212.)

These sovereign and independent States, being united as a Confederation, by various public acts of cession, became jointly interested in territory, and concerned to dispose of and make all needful rules and regulations respecting it. It is a conclusion not open to discussion in this court, "that there was no territory within the (original) United States, that was claimed by them in any other right than that of some of the confederate States." (Harcourt _v._ Gaillord, 12 Wh., 523.) "The question whether the vacant lands within the United States," says Chief Justice Marshall, "became joint property, or belonged to the separate States, was a momentous question, which threatened to shake the American Confederacy to its foundations. This important and dangerous question has been compromised, and the compromise is not now to be contested." (6 C.R., 87.)

The cessions of the States to the Confederation were made on the condition that the territory ceded should be laid out and formed into distinct republican States, which should be admitted as members to the Federal Union, having the same rights of sovereignty, freedom, and independence, as the other States. The first effort to fulfil this trust was made in 1785, by the offer of a charter or compact to the inhabitants who might come to occupy the land.

Those inhabitants were to form for themselves temporary State Governments, founded on the Const.i.tutions of any of the States, but to be alterable at the will of their Legislature; and permanent Governments were to succeed these, whenever the population became sufficiently numerous to authorize the State to enter the Confederacy; and Congress a.s.sumed to obtain powers from the States to facilitate this object. Neither in the deeds of cession of the States, nor in this compact, was a sovereign power for Congress to govern the Territories a.s.serted. Congress retained power, by this act, "to dispose of and to make rules and regulations respecting the public domain," but submitted to the people to organize a Government harmonious with those of the confederate States.

The next stage in the progress of colonial government was the adoption of the 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 Const.i.tution 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 Const.i.tution 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 "distinct republican States." This ordinance was submitted to Virginia in 1788, and the 5th article, embodying as it does a summary of the entire act, was specifically ratified and confirmed by that State. This was an incorporation of the ordinance into her act of cession. It was conceded, in the argument, that the authority of 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 a.s.sent 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, "Congress have proceeded to form new States, to erect temporary Governments, to appoint officers for them, and to prescribe the conditions on which such States shall be admitted into the Confederacy; all this has been done, and done without the least color of const.i.tutional authority." (Federalist, No. 38.) Richard Henry Lee, one of the committee who reported the ordinance to Congress, transmitted it to General Was.h.i.+ngton, (15th July, 1787,) saying, "It seemed necessary, for the security of property among uninformed and perhaps licentious people, as the greater part of those who go there are, that a strong-toned Government should exist, and the rights of property be clearly defined." The consent of all the States represented in Congress, the consent of the Legislature of Virginia, the consent of the inhabitants of the Territory, all concur to support the authority of this enactment. It is apparent, in the frame of the Const.i.tution, that the Convention recognised its validity, and adjusted parts of their work with reference to it. The authority to admit new States into the Union, the omission to provide distinctly for Territorial Governments, and the clause limiting the foreign slave trade to States then existing, which might not prohibit it, show that they regarded this Territory as provided with a Government, and organized permanently with a restriction on the subject of slavery.

Justice Chase, in the opinion already cited, says of the Government before, and it is in some measure true during the Confederation, that "the powers of Congress originated from necessity, and arose out of and were only limited by events, or, in other words, they were revolutionary in their very nature. Their extent depended upon the exigencies and necessities of public affairs;" and there is only one rule of construction, in regard to the acts done, which will fully support them, viz: that the powers actually exercised were rightfully exercised, wherever they were supported by the implied sanction of the State Legislatures, and by the ratifications of the people.

The clauses in the 3d section of the 4th article of the Const.i.tution, 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 Const.i.tution, by the light of the circ.u.mstances in which the Convention was placed, will aid us to determine its significance. The first clause is, "that new States may be admitted by the Congress to this Union." The condition of Kentucky, Vermont, Rhode Island, and the new States to be formed in the Northwest, suggested this, as a necessary addition to the powers of Congress. The next clause, providing for the subdivision of States, and the parties to consent to such an alteration, was required, by the plans on foot, for changes in Ma.s.sachusetts, New York, Pennsylvania, North Carolina, and Georgia. The clause which enables Congress to dispose of and make regulations respecting the public domain, was demanded by the exigencies of an exhausted treasury and a disordered finance, for relief by sales, and the preparation for sales, of the public lands; and the last clause, that nothing in the Const.i.tution should prejudice the claims of the United States or a particular State, was to quiet the jealousy and irritation of those who had claimed for the United States all the unappropriated lands. I look in vain, among the discussions of the time, for the a.s.sertion of a supreme sovereignty for Congress over the territory then belonging to the United States, or that they might thereafter acquire. I seek in vain for an annunciation that a consolidated power had been inaugurated, whose subject comprehended an empire, and which had no restriction but the discretion of Congress. This disturbing element of the Union entirely escaped the apprehensive previsions of Samuel Adams, George Clinton, Luther Martin, and Patrick Henry; and, in respect to dangers from power vested in a central Government over distant settlements, colonies, or provinces, their instincts were always alive. Not a word escaped them, to warn their countrymen, that here was a power to threaten the landmarks of this federative Union, and with them the safeguards of popular and const.i.tutional liberty; or that under this article there might be introduced, on our soil, a single Government over a vast extent of country--a Government foreign to the persons over whom it might be exercised, and capable of binding those not represented, by statutes, in all cases whatever. I find nothing to authorize these enormous pretensions, nothing in the expositions of the friends of the Const.i.tution, nothing in the expressions of alarm by its opponents--expressions which have since been developed as prophecies. Every portion of the United States was then provided with a munic.i.p.al Government, which this Const.i.tution was not designed to supersede, but merely to modify as to its conditions.

The compacts of cession by North Carolina and Georgia are subsequent to the Const.i.tution. They adopt the ordinance of 1787, except the clause respecting slavery. But the precautionary repudiation of that article forms an argument quite as satisfactory to the advocates for Federal power, as its introduction would have done. The refusal of a power to Congress to legislate in one place, seems to justify the seizure of the same power when another place for its exercise is found.

This proceeds from a radical error, which lies at the foundation of much of this discussion. It is, that the Federal Government may lawfully do whatever is not directly prohibited by the Const.i.tution.

This would have been a fundamental error, if no amendments to the Const.i.tution 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 Const.i.tution.

Before the cession of Georgia was made, Congress a.s.serted rights, in respect to a part of her territory, which require a pa.s.sing 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, "that the establishment of that Government shall in no respects impair the rights of the State of Georgia, either to the jurisdiction or soil of the Territory." The Const.i.tution provided that the importation of such persons as any of the existing States shall think proper to admit, shall not be prohibited by Congress before 1808. By these enactments, a prohibition was placed upon the importation of slaves into Georgia, although her Legislature had made none.

This court have repeatedly affirmed the paramount claim of Georgia to this Territory. They have denied the existence of any t.i.tle in the United States. (6 C.R., 87; 12 Wh., 523; 3 How., 212; 13 How., 381.) Yet these acts were cited in the argument as precedents to show the power of 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 Const.i.tutions of the Territory within the original limits of the United States. These Const.i.tutions 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 inst.i.tutions, and their emanc.i.p.ation from Federal control, whenever a suitable opportunity occurred. The limited reservation of legislative power to the officers of the Federal Government was excused, on the plea of _necessity_; and the probability is, that the clauses respecting slavery embody some compromise among the statesmen of that time; beyond these, the distinguis.h.i.+ng features of the system which the patriots of the Revolution had claimed as their birthright, from Great Britain, predominated in them.

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 const.i.tuted on similar principles, and with like conditions, was not an unnatural proceeding.

But there was great difficulty in finding const.i.tutional authority for the measure. The third section of the fourth article of the Const.i.tution was introduced into the Const.i.tution, on the motion of Mr. Gouverneur Morris. In 1803, he was appealed to for information in regard to its meaning. He answers: "I am very certain I had it not in contemplation to insert a decree _de coercendo imperio_ in the Const.i.tution of America.... I knew then, as well as I do now, that all North America must at length be annexed to us. Happy indeed, if the l.u.s.t of dominion stop here. It would therefore have been perfectly utopian to oppose a paper restriction to the violence of popular sentiment, in a popular Government." (3 Mor. Writ., 185.) A few days later, he makes another reply to his correspondent. "I perceive," he says, "I mistook the drift of your inquiry, which substantially is, whether Congress can admit, as a new State, territory which did not belong to the United States when the Const.i.tution was made. In my opinion, they cannot. I always thought, when we should acquire Canada and Louisiana, it would be proper to GOVERN THEM AS PROVINCES, AND ALLOW THEM NO VOICE _in our councils. In wording the third_ SECTION OF THE _fourth article, I went as far as circ.u.mstances would permit, to establish the exclusion_. CANDOR OBLIGES ME TO ADD MY BELIEF, THAT HAD IT BEEN MORE POINTEDLY EXPRESSED, A STRONG OPPOSITION WOULD HAVE BEEN MADE." (3 Mor. Writ., 192.) The first Territorial Government of 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.[3]

[Footnote 3: Mr. Varnum said: "The bill provided such a Government as had never been known in the United States." Mr. Eustis: "The Government laid down in this bill is certainly a new thing in the United States." Mr. Lucas: "It has been remarked, that this bill establishes elementary principles never previously introduced in the Government of any Territory of the United States. Granting the truth of this observation," &c., &c. Mr. Macon: "My first objection to the principle contained in this section is, that it establishes a species of government unknown to the United States." Mr. Boyle: "Were the President an angel instead of a man, I would not clothe him with this power." Mr. G.W. Campbell: "On examining the section, it will appear that it really establishes a complete despotism." Mr. Sloan: "Can anything be more repugnant to the principles of just government? Can anything be more despotic?"--_Annals of Congress_, 1803-'4.]

Besides these anomalous arrangements, the acquisition gave rise to jealous inquiries, as to the influence it would exert in determining the men and States that were to be "the arbiters and rulers" of the destinies of the Union; and unconst.i.tutional opinions, having for their aim to promote sectional divisions, were announced and developed. "Something," said an eminent statesman, "something has suggested to the members of Congress the policy of acquiring geographical majorities. This is a very direct step towards disunion, for it must foster the geographical enmities by which alone it can be effected. This something must be a contemplation of particular advantages to be derived from such majorities; and is it not notorious that they consist of nothing else but usurpations over persons and property, by which they can regulate the internal _wealth and prosperity of States and individuals_?"

The most dangerous of the efforts to employ a geographical political power, to perpetuate a geographical preponderance in the Union, is to be found in the deliberations upon the act of the 6th of March, 1820, before cited. The attempt consisted of a proposal to exclude Missouri from a place in the Union, unless her people would adopt a Const.i.tution 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 const.i.tutional power to impose the restriction. This was frankly admitted at the bar, in the course of this argument. The principles which this court have p.r.o.nounced condemn the pretension then made on behalf of the legislative department. In Groves _v._ Slaughter, (15 Pet.,) the Chief Justice said: "The power over this subject is exclusively with the several States, and each of them has a right to decide for itself whether it will or will not allow persons of this description to be brought within its limits." Justice McLean said: "The Const.i.tution of the United States operates alike in all the States, and one State has the same power over the subject of slavery as every other State." In Pollard's Lessee _v._ Hagan, (3 How., 212,) the court say: "The United States have no const.i.tutional capacity to exercise munic.i.p.al jurisdiction, sovereignty, or eminent domain, within the limits of a State or elsewhere, except in cases where it is delegated, and the court denies the faculty of the Federal Government to add to its powers by treaty or compact."

This is a necessary consequence, resulting from the nature of the Federal Const.i.tution, which is a federal compact among the States, establis.h.i.+ng 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 const.i.tutional relations between the people of the States and Congress, and affirmed a concurrent right for the latter, with their people, to const.i.tute the social and political system of the new States. A successful maintenance of this claim would have altered the basis of the Const.i.tution. The new States would have become members of a Union defined in part by the Const.i.tution 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 Const.i.tution. The demand was unconst.i.tutional 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, began to despair for the Const.i.tution.[4] 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 const.i.tutional 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 Const.i.tutions 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?

[Footnote 4: Mr. Jefferson wrote: "The Missouri question is the most portentous one that ever threatened our Union. In the gloomiest moments of the revolutionary war, I never had any apprehension equal to that I feel from this source."]

The Const.i.tution 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 power to make "ALL needful rules and regulations" "is a power of legislation," "a full legislative power;"

"that it includes all subjects of legislation in the territory," and is without any limitations, except the positive prohibitions which affect all the powers of Congress. Congress may then regulate or prohibit slavery upon the public domain within the new States, and such a prohibition would permanently affect the capacity of a slave, whose master might carry him to it. And why not? Because no power has been conferred on Congress. This is a conclusion universally admitted.

But the power to "make rules and regulations respecting the territory"

is not restrained by State lines, nor are there any const.i.tutional prohibitions upon its exercise in the domain of the United States within the States; and whatever rules and regulations respecting territory Congress may const.i.tutionally make are supreme, and are not dependent on the _situs_ of "the territory."

The author of the Farmer's Letters, so famous in the ante-revolutionary history, thus states the argument made by the American loyalists in favor of the claim of the British Parliament to legislate in all cases whatever over the colonies: "It has been urged with great vehemence against us," he says, "and it seems to be thought their FORT by our adversaries, that a power of regulation is a power of legislation; and a power of legislation, if const.i.tutional, must be universal and supreme, in the utmost sense of the word. It is therefore concluded that the colonies, by acknowledging the power of regulation, acknowledged every other power."

This sophism imposed upon a portion of the patriots of that day. Chief Justice Marshall, in his life of Was.h.i.+ngton, says "that many of the best-informed men in Ma.s.sachusetts had perhaps adopted the opinion of the parliamentary right of internal government over the colonies;"

"that the English statute book furnishes many instances of its exercise;" "that in no case recollected, was their authority openly controverted;" and "that the General Court of Ma.s.sachusetts, on a late occasion, openly recognised the principle." (Marsh. Wash., v. 2, p.

75, 76.)

But the more eminent men of Ma.s.sachusetts rejected it; and another patriot of the time employs the instance to warn us of "the stealth with which oppression approaches," and "the enormities towards which precedents travel." And the people of the United States, as we have seen, appealed to the last argument, rather than acquiesce in their authority. Could it have been the purpose of Was.h.i.+ngton and his ill.u.s.trious a.s.sociates, by the use of ambiguous, equivocal, and expansive words, such as "rules," "regulations," "territory," to re-establish in the Const.i.tution of their country that _fort_ which had been prostrated amid the toils and with the sufferings and sacrifices of seven years of war? Are these words to be understood as the Norths, the Grenvilles, Hillsboroughs, Hutchinsons, and Dunmores--in a word, as George III would have understood them--or are we to look for their interpretation to Patrick Henry or Samuel Adams, to Jefferson, and Jay, and d.i.c.kinson; to the sage Franklin, or to Hamilton, who from his early manhood was engaged in combating British constructions of such words? We know that the resolution of Congress of 1780 contemplated that the new States to be formed under their recommendation were to have the same rights of sovereignty, freedom, and independence, as the old. That every resolution, cession, compact, and ordinance, of the States, observed the same liberal principle.

That the Union of the Const.i.tution is a union formed of equal States; and that new States, when admitted, were to enter "this Union." Had another union been proposed in "any pointed manner," it would have encountered not only "strong" but successful opposition. The disunion between Great Britain and her colonies originated in the antipathy of the latter to "rules and regulations" made by a remote power respecting their internal policy. In forming the Const.i.tution, this fact was ever present in the minds of its authors. The people were a.s.sured by their most trusted statesmen "that the jurisdiction of the Federal Government is limited to certain enumerated objects, which concern all members of the republic," and "that the local or munic.i.p.al authorities form distinct portions of supremacy, no more subject within their respective spheres to the general authority, than the general authority is subject to them within its own sphere." Still, this did not content them. Under the lead of Hanc.o.c.k and Samuel Adams, of Patrick Henry and George Mason, they demanded an explicit declaration that no more power was to be exercised than they had delegated. And the ninth and tenth amendments to the Const.i.tution 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 Const.i.tution? When the questions that came to the surface upon the acquisition of Louisiana were presented to the mind of Jefferson, he wrote: "I had rather ask an enlargement of power from the nation, where it is found necessary, than to a.s.sume it by a construction which would make our powers boundless. Our peculiar security is in the possession of a written Const.i.tution. Let us not make it blank paper by construction. I say the same as to the opinion of those who consider the grant of the treaty-making power as boundless. If it is, then we have no Const.i.tution. If it has bounds, they can be no others than the definitions of the powers which that instrument gives. It specifies and delineates the operations permitted to the Federal Government, and gives the powers necessary to carry them into execution." The publication of the journals of the Federal Convention in 1819, of the debates reported by Mr. Madison in 1840, and the ma.s.s of private correspondence of the early statesmen before and since, enable us to approach the discussion of the aims of those who made the Const.i.tution, with some insight and confidence.

I have endeavored, with the a.s.sistance 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 "dispose of and make all needful rules and regulations respecting _territory_," is not supported by the historical evidence drawn from the Revolution, the Confederation, or the deliberations which preceded the ratification of the Federal Const.i.tution. The ordinance of 1787 depended upon the action of the Congress of the Confederation, the a.s.sent 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 Const.i.tution 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, "that the President found Congress mounted to the pitch of pa.s.sing those acts, without inquiring where they acquired the authority, and he conquered his own scruples as they had done theirs." But this court cannot undertake for themselves the same conquest. They acknowledge that our peculiar security is in the possession of a written Const.i.tution, and they cannot make it blank paper by construction.