Part 8 (1/2)
In considering the first of these questions, the acts or declarations of the master, as expressive of his purpose to emanc.i.p.ate, may be thrown out of view, since none will deny the right of the owner to relinquish his interest in any subject of property, at any time or in any place. The inquiry here bears no relation to acts or declarations of the owner as expressive of his intent or purpose to make such a relinquishment; it is simply a question whether, irrespective of such purpose, and in opposition thereto, that relinquishment can be enforced against the owner of property within his own country, in defiance of every guaranty promised by its laws; and this through the instrumentality of a claim to power entirely foreign and extraneous with reference to himself, to the origin and foundation of his t.i.tle, and to the independent authority of his country. A conclusive negative answer to such an inquiry is at once supplied, by announcing a few familiar and settled principles and doctrines of public law.
Vattel, in his chapter on the general principles of the laws of nations, section 15th, tells us, that ”nations being free and independent of each other in the same manner that men are naturally free and independent, the second general law of their society is, that each nation should be left in the peaceable enjoyment of that liberty which she inherits from nature.”
”The natural society of nations,” says this writer, ”cannot subsist unless the natural rights of each be respected.” In section 16th he says, ”as a consequence of that liberty and independence, it exclusively belongs to each nation to form her own judgment of what her conscience prescribes for her--of what it is proper or improper for her to do; and of course it rests solely with her to examine and determine whether she can perform any office for another nation without neglecting the duty she owes to herself. In all cases, therefore, in which a nation has the right of judging what her duty requires, no other nation can compel her to act in such or such a particular manner, for any attempt at such compulsion would be an infringement on the liberty of nations.” Again, in section 18th, of the same chapter, ”nations composed of men, and considered as so many free persons living together in a state of nature, are naturally equal, and inherit from nature the same obligations and rights. Power or weakness does not produce any difference. A small republic is no less a sovereign state than the most powerful kingdom.”
So, in section 20: ”A nation, then, is mistress of her own actions, so long as they do not affect the proper and _perfect rights_ of any other nation--so long as she is only _internally_ bound, and does not lie under any _external_ and _perfect_ obligation. If she makes an ill use of her liberty, she is guilty of a breach of duty; but other nations are bound to acquiesce in her conduct, since they have no right to dictate to her. Since nations are _free_, _independent_, and _equal_, and since each possesses the right of judging, according to the dictates of her conscience, what conduct she is to pursue, in order to fulfil her duties, the effect of the whole is to produce, at least externally, in the eyes of mankind, a perfect equality of rights between nations, in the administration of their affairs, and in the pursuit of their pretensions, without regard to the intrinsic justice of their conduct, of which others have no right to form a definitive judgment.”
Chancellor Kent, in the 1st volume of his Commentaries, lecture 2d, after collating the opinions of Grotius, Heineccius, Vattel, and Rutherford, enunciates the following positions as sanctioned by these and other learned publicists, viz: that ”nations are equal in respect to each other, and ent.i.tled to claim equal consideration for their rights, whatever may be their relative dimensions or strength, or however greatly they may differ in government, religion, or manners.
This perfect equality and entire independence of all distinct States is a fundamental principle of public law. It is a necessary consequence of this equality, that each nation has a right to govern itself as it may think proper, and no one nation is ent.i.tled to dictate a form of government or religion, or a course of internal policy, to another.” This writer gives some instances of the violation of this great national immunity, and amongst them the constant interference by the ancient Romans, under the pretext of settling disputes between their neighbors, but with the real purpose of reducing those neighbors to bondage; the interference of Russia, Prussia, and Austria, for the dismemberment of Poland; the more recent invasion of Naples by Austria in 1821, and of Spain by the French Government in 1823, under the excuse of suppressing a dangerous spirit of internal revolution and reform.
With reference to this right of self-government in independent sovereign States, an opinion has been expressed, which, whilst it concedes this right as inseparable from and as a necessary attribute of sovereignty and independence, a.s.serts nevertheless some implied and paramount authority of a supposed international law, to which this right of self-government must be regarded and exerted as subordinate; and from which independent and sovereign States can be exempted only by a protest, or by some public and formal rejection of that authority. With all respect for those by whom this opinion has been professed, I am constrained to regard it as utterly untenable, as palpably inconsistent, and as presenting in argument a complete _felo de se_.
Sovereignty, independence, and a perfect right of self-government, can signify nothing less than a superiority to and an exemption from all claims by any extraneous power, however expressly they may be a.s.serted, and render all attempts to enforce such claims merely attempts at usurpation. Again, could such claims from extraneous sources be regarded as legitimate, the effort to resist or evade them, by protest or denial, would be as irregular and unmeaning as it would be futile. It could in no wise affect the question of superior right.
For the position here combatted, no respectable authority has been, and none it is thought can be adduced. It is certainly irreconcilable with the doctrines already cited from the writers upon public law.
Neither the case of Lewis Somersett, (Howell's State Trials, vol. 20,) so often vaunted as the proud evidence of devotion to freedom under a Government which has done as much perhaps to extend the reign of slavery as all the world besides; nor does any decision founded upon the authority of Somersett's case, when correctly expounded, a.s.sail or impair the principle of national equality enunciated by each and all of the publicists already referred to. In the case of Somersett, although the applicant for the _habeas corpus_ and the individual claiming property in that applicant were both subjects and residents within the British empire, yet the decision cannot be correctly understood as ruling absolutely and under all circ.u.mstances against the right of property in the claimant. That decision goes no farther than to determine, that _within the realm of England_ there was no authority to justify the detention of an individual in private bondage. If the decision in Somersett's case had gone beyond this point, it would have presented the anomaly of a repeal by laws enacted for and limited in their operation to the realm alone, of other laws and inst.i.tutions established for places and subjects without the limits of the realm of England; laws and inst.i.tutions at that very time, and long subsequently, sanctioned and maintained under the authority of the British Government, and which the full and combined action of the King and Parliament was required to abrogate.
But could the decision in Somersett's case be correctly interpreted as ruling the doctrine which it has been attempted to deduce from it, still that doctrine must be considered as having been overruled by the lucid and able opinion of Lord Stowell in the more recent case of the slave Grace, reported in the second volume of Haggard, p. 94; in which opinion, whilst it is conceded by the learned judge that there existed no power to coerce the slave whilst in England, that yet, upon her return to the island of Antigua, her _status_ as a slave was revived, or, rather, that the t.i.tle of the owner to the slave as property had never been extinguished, but had always existed in that island. If the principle of this decision be applicable as between different portions of one and the same empire, with how much more force does it apply as between nations or Governments entirely separate, and absolutely independent of each other? For in this precise att.i.tude the States of this Union stand with reference to this subject, and with reference to the tenure of every description of property vested under their laws and held within their territorial jurisdiction.
A strong ill.u.s.tration of the principle ruled by Lord Stowell, and of the effect of that principle even in a case of express _contract_, is seen in the case of Lewis _v._ Fullerton, decided by the Supreme Court of Virginia, and reported in the first volume of Randolph, p. 15. The case was this: A female slave, the property of a citizen of Virginia, whilst with her master in the State of Ohio, was taken from his possession under a writ of _habeas corpus_, and set at liberty. Soon, or immediately after, by agreement between this slave and her master, a deed was executed in Ohio by the latter, containing a stipulation that this slave should return to Virginia, and, after a service of two years in that State, should there be free. The law of Virginia regulating emanc.i.p.ation required that deeds of emanc.i.p.ation should, within a given time from their date, be recorded in the court of the county in which the grantor resided, and declared that deeds with regard to which this requisite was not complied with should be void.
Lewis, an infant son of this female, under the rules prescribed in such cases, brought an action, _in forma pauperis_, in one of the courts of Virginia, for the recovery of his freedom, claimed in virtue of the transactions above mentioned. Upon an appeal to the Supreme Court from a judgment against the plaintiff, Roane, Justice, in delivering the opinion of the court, after disposing of other questions discussed in that case, remarks:
”As to the deed of emanc.i.p.ation contained in the record, that deed, taken in connection with the evidence offered in support of it, shows that it had a reference to the State of Virginia; and the testimony shows that it formed a part of this contract, whereby the slave Milly was to be brought back (as she was brought back) into the State of Virginia. Her object was therefore to secure her freedom by the deed within the State of Virginia, after the time should have expired for which she had indented herself, and when she should be found abiding within the State of Virginia.
”If, then, this contract had an eye to the State of Virginia for its operation and effect, the _lex loci_ ceases to operate. In that case it must, to have its effect, conform to the laws of Virginia. It is insufficient under those laws to effectuate an emanc.i.p.ation, for want of a due recording in the county court, as was decided in the case of Givens _v._ Mann, in this court. It is also ineffectual within the Commonwealth of Virginia for another reason. The _lex loci_ is also to be taken subject to the exception, that it is not to be enforced in another country, when it violates some moral duty or the policy of that country, or is not consistent with a positive right secured to a third person or party by the laws of that country in which it is sought to be enforced. In such a case we are told, '_magis jus nostrum, quam jus alienum servemus_.'” (Huberus, tom. 2, lib. 1, t.i.t.
3; 2 Fontblanque, p. 444.) ”That third party in this instance is the Commonwealth of Virginia, and her policy and interests are also to be attended to. These turn the scale against the _lex loci_ in the present instance.”
The second or last-mentioned position a.s.sumed for the plaintiff under the pleas in bar, as it rests mainly if not solely upon the provision of the act of Congress of March 6, 1820, prohibiting slavery in Upper Louisiana north of thirty-six degrees thirty minutes north lat.i.tude, popularly called the _Missouri Compromise_, that a.s.sumption renews the question, formerly so zealously debated, as to the validity of the provision in the act of Congress, and upon the const.i.tutional competency of Congress to establish it.
Before proceeding, however, to examine the validity of the prohibitory provision of the law, it may, so far as the rights involved in this cause are concerned, be remarked, that conceding to that provision the validity of a legitimate exercise of power, still this concession could by no rational interpretation imply the slightest authority for its operation beyond the territorial limits comprised within its terms; much less could there be inferred from it a power to destroy or in any degree to control rights, either of person or property, entirely within the bounds of a distinct and independent sovereignty--rights invested and fortified by the guaranty of that sovereignty. These surely would remain in all their integrity, whatever effect might be ascribed to the prohibition within the limits defined by its language.
But, beyond and in defiance of this conclusion, inevitable and undeniable as it appears, upon every principle of justice or sound induction, it has been attempted to convert this prohibitory provision of the act of 1820 not only into a weapon with which to a.s.sail the inherent--the _necessarily_ inherent--powers of independent sovereign Governments, but into a mean of forfeiting that equality of rights and immunities which are the birthright or the donative from the Const.i.tution of every citizen of the United States within the length and breadth of the nation. In this attempt, there is a.s.serted a power in Congress, whether from incentives of interest, ignorance, faction, partiality, or prejudice, to bestow upon a portion of the citizens of this nation that which is the common property and privilege of all--the power, in fine, of confiscation, in retribution for no offence, or, if for an offence, for that of accidental locality only.
It may be that, with respect to future cases, like the one now before the court, there is felt an a.s.surance of the impotence of such a pretension; still, the fullest conviction of that result can impart to it no claim to forbearance, nor dispense with the duty of antipathy and disgust at its sinister aspect, whenever it may be seen to scowl upon the justice, the order, the tranquillity, and fraternal feeling, which are the surest, nay, the only means, of promoting or preserving the happiness and prosperity of the nation, and which were the great and efficient incentives to the formation of this Government.
The power of Congress to impose the prohibition in the eighth section of the act of 1820 has been advocated upon an attempted construction of the second clause of the third section of the fourth article of the Const.i.tution, which declares that ”Congress shall have power to dispose of and to make all needful rules and regulations respecting the _territory_ and _other property belonging_ to the United States.”
In the discussions in both houses of Congress, at the time of adopting this eighth section of the act of 1820, great weight was given to the peculiar language of this clause, viz: _territory_ and _other property belonging_ to the United States, as going to show that the power of disposing of and regulating, thereby vested in Congress, was restricted to a _proprietary interest in the territory or land_ comprised therein, and did not extend to the personal or political rights of citizens or settlers, inasmuch as this phrase in the Const.i.tution, ”_territory or other property_,” identified _territory_ with _property_, and inasmuch as _citizens_ or _persons_ could not be property, and especially were not property _belonging_ to the United States. And upon every principle of reason or necessity, this power to dispose of and to regulate the _territory_ of the nation could be designed to extend no farther than to its preservation and appropriation to the uses of those to whom it belonged, viz: the nation. Scarcely anything more illogical or extravagant can be imagined than the attempt to deduce from this provision in the Const.i.tution a power to destroy or in any wise to impair the civil and political rights of the citizens of the United States, and much more so the power to establish inequalities amongst those citizens by creating privileges in one cla.s.s of those citizens, and by the disfranchis.e.m.e.nt of other portions or cla.s.ses, by degrading them from the position they previously occupied.
There can exist no rational or natural connection or affinity between a pretension like this and the power vested by the Const.i.tution in Congress with regard to the Territories; on the contrary, there is an absolute incongruity between them.
But whatever the power vested in Congress, and whatever the precise subject to which that power extended, it is clear that the power related to a subject appertaining to the _United States_, and one to be disposed of and regulated for the benefit and under the authority of the _United States_. Congress was made simply the agent or _trustee_ for the United States, and could not, without a breach of trust and a fraud, appropriate the subject of the trust to any other beneficiary or _cestui que trust_ than the United States, or to the people of the United States, upon equal grounds, legal or equitable.
Congress could not appropriate that subject to any one cla.s.s or portion of the people, to the exclusion of others, politically and const.i.tutionally equals; but every citizen would, if any _one_ could claim it, have the like rights of purchase, settlement, occupation, or any other right, in the national territory.
Nothing can be more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them because they are the owners of slaves, than the fact that the same instrument, which imparts to Congress its very existence and its every function, guaranties to the slaveholder the t.i.tle to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, farther, that the only private property which the Const.i.tution has _specifically recognised_, and has imposed it as a direct obligation both on the States and the Federal Government to protect and _enforce_, is the property of the master in his slave; no other right of property is placed by the Const.i.tution upon the same high ground, nor s.h.i.+elded by a similar guaranty.
Can there be imputed to the sages and patriots by whom the Const.i.tution was framed, or can there be detected in the text of that Const.i.tution, or in any rational construction or implication deducible therefrom, a contradiction so palpable as would exist between a pledge to the slaveholder of an equality with his fellow-citizens, and of the formal and solemn a.s.surance for the security and enjoyment of his property, and a warrant given, as it were _uno flatu_, to another, to rob him of that property, or to subject him to proscription and disfranchis.e.m.e.nt for possessing or for endeavoring to retain it? The injustice and extravagance necessarily implied in a supposition like this, cannot be rationally imputed to the patriotic or the honest, or to those who were merely sane.
A conclusion in favor of the prohibitory power in Congress, as a.s.serted in the eighth section of the act of 1820, has been attempted, as deducible from the precedent of the ordinance of the convention of 1787, concerning the cession by Virginia of the territory northwest of the Ohio; the provision in which ordinance, relative to slavery, it has been attempted to impose upon other and subsequently-acquired territory.