Part 7 (2/2)
It is difficult to conceive by what magic the mere _surcease_ or renunciation of an interest in a subject of _property_, by an individual possessing that interest, can alter the essential character of that property with respect to persons or communities unconnected with such renunciation. Can it be pretended that an individual in any State, by his single act, though voluntarily or designedly performed, yet without the co-operation or warrant of the Government, perhaps in opposition to its policy or its guaranties, can create a citizen of that State? Much more emphatically may it be asked, how such a result could be accomplished by means wholly extraneous, and entirely foreign to the Government of the State? The argument thus urged must lead to these extraordinary conclusions. It is regarded at once as wholly untenable, and as unsustained by the direct authority or by the a.n.a.logies of history.
The inst.i.tution of slavery, as it exists and has existed from the period of its introduction into the United States, though more humane and mitigated in character than was the same inst.i.tution, either under the republic or the empire of Rome, bears, both in its tenure and in the simplicity incident to the mode of its exercise, a closer resemblance to Roman slavery than it does to the condition of _villanage_, as it formerly existed in England. Connected with the latter, there were peculiarities, from custom or positive regulation, which varied it materially from the slavery of the Romans, or from slavery at any period within the United States.
But with regard to slavery amongst the Romans, it is by no means true that emanc.i.p.ation, either during the republic or the empire, conferred, by the act itself, or implied, the _status_ or the rights of citizens.h.i.+p.
The proud t.i.tle of Roman citizen, with the immunities and rights incident thereto, and as contradistinguished alike from the condition of conquered subjects or of the lower grades of native domestic residents, was maintained throughout the duration of the republic, and until a late period of the eastern empire, and at last was in _effect_ destroyed less by an elevation of the inferior cla.s.ses than by the degradation of the free, and the previous possessors of rights and immunities civil and political, to the indiscriminate abas.e.m.e.nt incident to absolute and simple despotism.
By the learned and elegant historian of the Decline and Fall of the Roman Empire, we are told that ”In the _decline_ of the Roman empire, the proud distinctions of the republic were gradually abolished; and the reason or instinct of Justinian completed the simple form of an absolute monarchy. The emperor could not eradicate the popular reverence which always waits on the possession of hereditary wealth or the memory of famous ancestors. He delighted to honor with t.i.tles and emoluments his generals, magistrates, and senators, and his precarious indulgence communicated some rays of their glory to their wives and children. But in the eye of the law all Roman citizens were equal, and all subjects of the empire were citizens of Rome. That inestimable character was _degraded_ to an obsolete and empty name. The voice of a Roman could no longer enact his laws, or create the annual ministers of his powers; his const.i.tutional rights might have checked the arbitrary will of a master; and the bold adventurer from Germany or Arabia was admitted with equal favor to the civil and military command which the _citizen_ alone had been once ent.i.tled to a.s.sume over the conquests of his fathers. The first Caesars had scrupulously guarded the distinction of _ingenuous_ and _servile_ birth, which was decided by the condition of the mother. The slaves who were liberated by a generous master immediately entered into the middle cla.s.s of _libertini_ or freedmen; but they could never be enfranchised from the duties of obedience and grat.i.tude; whatever were the fruits of their industry, their patron and his family inherited the third part, or even the whole of their fortune, if they died without children and without a testament. Justinian respected the rights of patrons, but his indulgence removed the badge of disgrace from the two inferior orders of freedmen; whoever ceased to be a slave, obtained without reserve or delay the station of a citizen; and at length the dignity of an ingenuous birth _was created_ or _supposed_ by the omnipotence of the emperor.”[1]
[Footnote 1: Vide Gibbons's Decline and Fall of the Roman Empire.
London edition of 1825, vol. 3d, chap. 44, p. 183.]
The above account of slavery and its modifications will be found in strictest conformity with the Inst.i.tutes of Justinian. Thus, book 1st, t.i.tle 3d, it is said: ”The first general division of persons in respect to their rights is into freemen and slaves.” The same t.i.tle, sec. 4th: ”Slaves are born such, or become so. They are born such of bondwomen; they become so either by _the law of nations_, as by capture, or by the civil law.” Section 5th: ”In the condition of slaves there is no diversity; but among free persons there are many.
Thus some are _ingenui_ or freemen, others _libertini_ or freedmen.”
t.i.t. 4th. DE INGENUIS.--”A freeman is one who is born free by being born in matrimony, of parents who both are free, or both freed; or of parents one free and the other freed. But one born of a free mother, although the father be a slave or unknown, is free.”
t.i.t. 5th. DE LIBERTINIS.--”Freedmen are those who have been manumitted from just servitude.”
Section third of the same t.i.tle states that ”freedmen were formerly distinguished by a threefold division.” But the emperor proceeds to say: ”Our _piety_ leading us to reduce all things into a better state, we have amended our laws, and re-established the ancient usage; for anciently liberty was simple and undivided--that is, was conferred upon the slave as his manumittor possessed it, admitting this single difference, that the person manumitted became only a _freed man_, although his manumittor was a _free_ man.” And he further declares: ”We have made all freed men in general become citizens of Rome, regarding neither the age of the manumitted, nor the manumittor, nor the ancient forms of manumission. We have also introduced many new methods by which _slaves_ may become Roman citizens.”
By the references above given it is shown, from the nature and objects of civil and political a.s.sociations, and upon the direct authority of history, that citizens.h.i.+p was not conferred by the simple fact of emanc.i.p.ation, but that such a result was deduced therefrom in violation of the fundamental principles of free political a.s.sociation; by the exertion of despotic will to establish, under a false and misapplied denomination, one equal and universal slavery; and to effect this result required the exertions of absolute power--of a power both in theory and practice, being in its most plenary acceptation the SOVEREIGNTY, THE STATE ITSELF--it could not be produced by a less or inferior authority, much less by the will or the act of one who, with reference to civil and political rights, was himself a _slave_. The master might abdicate or abandon his interest or owners.h.i.+p in his property, but his act would be a mere abandonment.
It seems to involve an absurdity to impute to it the invest.i.ture of rights which the sovereignty alone had power to impart. There is not perhaps a community in which slavery is recognised, in which the power of emanc.i.p.ation and the modes of its exercise are not regulated by law--that is, by the sovereign authority; and none can fail to comprehend the necessity for such regulation, for the preservation of order, and even of political and social existence.
By the argument for the plaintiff in error, a power equally despotic is vested in every member of the a.s.sociation, and the most obscure or unworthy individual it comprises may arbitrarily invade and derange its most deliberate and solemn ordinances. At a.s.sumptions anomalous as these, so fraught with mischief and ruin, the mind at once is revolted, and goes directly to the conclusions, that to change or to abolish a fundamental principle of the society, must be the act of the society itself--of the _sovereignty_; and that none other can admit to a partic.i.p.ation of that high attribute. It may further expose the character of the argument urged for the plaintiff, to point out some of the revolting consequences which it would authorize. If that argument possesses any integrity, it a.s.serts the power in any citizen, or _quasi_ citizen, or a resident foreigner of any one of the States, from a motive either of corruption or caprice, not only to infract the inherent and necessary authority of such State, but also materially to interfere with the organization of the Federal Government, and with the authority of the separate and independent States. He may emanc.i.p.ate his negro slave, by which process he first transforms that slave into a citizen of his own State; he may next, under color of article fourth, section second, of the Const.i.tution of the United States, obtrude him, and on terms of civil and political equality, upon any and every State in this Union, in defiance of all regulations of necessity or policy, ordained by those States for their internal happiness or safety. Nay, more: this manumitted slave may, by a proceeding springing from the will or act of his master alone, be mixed up with the inst.i.tutions of the Federal Government, to which he is not a party, and in opposition to the laws of that Government which, in authorizing the extension by naturalization of the rights and immunities of citizens of the United States to those not originally parties to the Federal compact, have restricted that boon to _free white aliens alone_. If the rights and immunities connected with or practiced under the inst.i.tutions of the United States can by any indirection be claimed or deduced from sources or modes other than the Const.i.tution and laws of the United States, it follows that the power of naturalization vested in Congress is not exclusive--that it has _in effect_ no existence, but is repealed or abrogated.
But it has been strangely contended that the jurisdiction of the Circuit Court might be maintained upon the ground that the plaintiff was a _resident_ of Missouri, and that, for the purpose of vesting the court with jurisdiction over the parties, _residence_ within the State was sufficient.
The first, and to my mind a conclusive reply to this singular argument is presented in the fact, that the language of the Const.i.tution restricts the jurisdiction of the courts to cases in which the parties shall be _citizens_, and is entirely silent with respect to residence.
A second answer to this strange and lat.i.tudinous notion is, that it so far stultifies the sages by whom the Const.i.tution was framed, as to impute to them ignorance of the material distinction existing between _citizens.h.i.+p_ and mere _residence_ or _domicil_, and of the well-known facts, that a person confessedly an _alien_ may be permitted to reside in a country in which he can possess no civil or political rights, or of which he is neither a citizen nor subject; and that for certain purposes a man may have a _domicil_ in different countries, in no one of which he is an actual personal resident.
The correct conclusions upon the question here considered would seem to be these:
That in the establishment of the several communities now the States of this Union, and in the formation of the Federal Government, the African was not deemed politically a person. He was regarded and owned in every State in the Union as _property_ merely, and as such was not and could not be a party or an actor, much less a _peer_ in any compact or form of government established by the States or the United States. That if, since the adoption of the State Governments, he has been or could have been elevated to the possession of political rights or powers, this result could have been effected by no authority less potent than that of the sovereignty--the State--exerted to that end, either in the form of legislation, or in some other mode of operation.
It could certainly never have been accomplished by the will of an individual operating independently of the sovereign power, and even contravening and controlling that power. That so far as rights and immunities appertaining to citizens have been defined and secured by the Const.i.tution and laws of the United States, the African race is not and never was recognised either by the language or purposes of the former; and it has been expressly excluded by every act of Congress providing for the creation of citizens by _naturalization_, these laws, as has already been remarked, being restricted to _free white aliens_ exclusively.
But it is evident that, after the formation of the Federal Government by the adoption of the Const.i.tution, the highest exertion of State power would be incompetent to bestow a character or status created by the Const.i.tution, or conferred in virtue of its authority only. Upon those, therefore, who were not originally parties to the Federal compact, or who are not admitted and adopted as parties thereto, in the mode prescribed by its paramount authority, no State could have power to bestow the character or the rights and privileges exclusively reserved by the States for the action of the Federal Government by that compact.
The States, in the exercise of their political power, might, with reference to their peculiar Government and jurisdiction, guaranty the rights of person and property, and the enjoyment of civil and political privileges, to those whom they should be disposed to make the objects of their bounty; but they could not reclaim or exert the powers which they had vested exclusively in the Government of the United States. They could not add to or change in any respect the cla.s.s of persons to whom alone the character of citizen of the United States appertained at the time of the adoption of the Federal Const.i.tution. They could not create citizens of the United States by any direct or indirect proceeding.
According to the view taken of the law, as applicable to the demurrer to the plea in abatement in this cause, the questions subsequently raised upon the several pleas in bar might be pa.s.sed by, as requiring neither a particular examination, nor an adjudication directly upon them. But as these questions are intrinsically of primary interest and magnitude, and have been elaborately discussed in argument, and as with respect to them the opinions of a majority of the court, including my own, are perfectly coincident, to me it seems proper that they should here be fully considered, and, so far as it is practicable for this court to accomplish such an end, finally put to rest.
The questions then to be considered upon the several pleas in bar, and upon the agreed statement of facts between the counsel, are: 1st.
Whether the admitted master and owner of the plaintiff, holding him as his slave in the State of Missouri, and in conformity with his rights guarantied to him by the laws of Missouri then and still in force, by carrying with him for his own benefit and accommodation, and as his own slave, the person of the plaintiff into the State of Illinois, within which State slavery had been prohibited by the Const.i.tution thereof, and by retaining the plaintiff during the commorancy of the master within the State of Illinois, had, upon his return with his slave into the State of Missouri, forfeited his rights as master, by reason of any supposed operation of the prohibitory provision in the Const.i.tution of Illinois, beyond the proper territorial jurisdiction of the latter State? 2d. Whether a similar removal of the plaintiff by his master from the State of Missouri, and his retention in service at a point included within no State, but situated north of thirty-six degrees thirty minutes of north lat.i.tude, worked a forfeiture of the right of property of the master, and the manumission of the plaintiff?
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