Part 18 (2/2)
But it is a distinct question, whether the law of Missouri recognised and allowed effect to the change wrought in the _status_ of the plaintiff, by force of the laws of the Territory of Wisconsin.
I say the law of Missouri, because a judicial tribunal, in one State or nation, can recognise personal rights acquired by force of the law of any other State or nation, only so far as it is the law of the former State that those rights should be recognised. But, in the absence of positive law to the contrary, the will of every civilized State must be presumed to be to allow such effect to foreign laws as is in accordance with the settled rules of international law. And legal tribunals are bound to act on this presumption. It may be a.s.sumed that the motive of the State in allowing such operation to foreign laws is what has been termed comity. But, as has justly been said, (per Chief Justice Taney, 13 Pet., 589,) it is the comity of the State, not of the court. The judges have nothing to do with the motive of the State. Their duty is simply to ascertain and give effect to its will. And when it is found by them that its will to depart from a rule of international law has not been manifested by the State, they are bound to a.s.sume that its will is to give effect to it. Undoubtedly, every sovereign State may refuse to recognise a change, wrought by the law of a foreign State, on the _status_ of a person, while within such foreign State, even in cases where the rules of international law require that recognition. Its will to refuse such recognition may be manifested by what we term statute law, or by the customary law of the State. It is within the province of its judicial tribunals to inquire and adjudge whether it appears, from the statute or customary law of the State, to be the will of the State to refuse to recognise such changes of _status_ by force of foreign law, as the rules of the law of nations require to be recognised. But, in my opinion, it is not within the province of any judicial tribunal to refuse such recognition from any political considerations, or any view it may take of the exterior political relations between the State and one or more foreign States, or any impressions it may have that a change of foreign opinion and action on the subject of slavery may afford a reason why the State should change its own action. To understand and give just effect to such considerations, and to change the action of the State in consequence of them, are functions of diplomatists and legislators, not of judges.
The inquiry to be made on this part of the case is, therefore, whether the State of Missouri has, by its statute, or its customary law, manifested its will to displace any rule of international law, applicable to a change of the _status_ of a slave, by foreign law.
I have not heard it suggested that there was any statute of the State of Missouri bearing on this question. The customary law of Missouri is the common law, introduced by statute in 1816. (1 Ter. Laws, 436.) And the common law, as Blackstone says, (4 Com., 67,) adopts, in its full extent, the law of nations, and holds it to be a part of the law of the land.
I know of no sufficient warrant for declaring that any rule of international law, concerning the recognition, in that State, of a change of _status_, wrought by an extra-territorial law, has been displaced or varied by the will of the State of Missouri.
I proceed then to inquire what the rules of international law prescribe concerning the change of _status_ of the plaintiff wrought by the law of the Territory of Wisconsin.
It is generally agreed by writers upon international law, and the rule has been judicially applied in a great number of cases that wherever any question may arise concerning the _status_ of a person, it must be determined according to that law which has next previously rightfully operated on and fixed that _status_. And, further, that the laws of a country do not rightfully operate upon and fix the _status_ of persons who are within its limits _in itinere_, or who are abiding there for definite temporary purposes, as for health, curiosity, or occasional business; that these laws, known to writers on public and private international law as personal statutes, operate only on the inhabitants of the country. Not that it is or can be denied that each independent nation may, if it thinks fit, apply them to all persons within their limits. But when this is done, not in conformity with the principles of international law, other States are not understood to be willing to recognise or allow effect to such applications of personal statutes.
It becomes necessary, therefore, to inquire whether the operation of the laws of the Territory of Wisconsin upon the _status_ of the plaintiff was or was not such an operation as these principles of international law require other States to recognise and allow effect to.
And this renders it needful to attend to the particular facts and circ.u.mstances of this case.
It appears that this case came on for trial before the Circuit Court and a jury, upon an issue, in substance, whether the plaintiff, together with his wife and children, were the slaves of the defendant.
The court instructed the jury that, ”upon the facts in this case, the law is with the defendant.” This withdrew from the jury the consideration and decision of every matter of fact. The evidence in the case consisted of written admissions, signed by the counsel of the parties. If the case had been submitted to the judgment of the court, upon an agreed statement of facts, entered of record, in place of a special verdict, it would have been necessary for the court below, and for this court, to p.r.o.nounce its judgment solely on those facts, thus agreed, without inferring any other facts therefrom. By the rules of the common law applicable to such a case, and by force of the seventh article of the amendments of the Const.i.tution, this court is precluded from finding any fact not agreed to by the parties on the record. No submission to the court on a statement of facts was made. It was a trial by jury, in which certain admissions, made by the parties, were the evidence. The jury were not only competent, but were bound to draw from that evidence every inference which, in their judgment, exercised according to the rules of law, it would warrant. The Circuit Court took from the jury the power to draw any inferences from the admissions made by the parties, and decided the case for the defendant. This course can be justified here, if at all, only by its appearing that upon the facts agreed, and all such inferences of fact favorable to the plaintiff's case, as the jury might have been warranted in drawing from those admissions, the law was with the defendant. Otherwise, the plaintiff would be deprived of the benefit of his trial by jury, by whom, for aught we can know, those inferences favorable to his case would have been drawn.
The material facts agreed, bearing on this part of the case, are, that Dr. Emerson, the plaintiff's master, resided about two years at the military post of Fort Snelling, being a surgeon in the army of the United States, his domicil of origin being unknown; and what, if anything, he had done, to preserve or change his domicil prior to his residence at Rock Island, being also unknown.
Now, it is true, that under some circ.u.mstances the residence of a military officer at a particular place, in the discharge of his official duties, does not amount to the acquisition of a technical domicil. But it cannot be affirmed, with correctness, that it never does. There being actual residence, and this being presumptive evidence of domicil, all the circ.u.mstances of the case must be considered, before a legal conclusion can be reached, that his place of residence is not his domicil. If a military officer stationed at a particular post should entertain an expectation that his residence there would be indefinitely protracted, and in consequence should remove his family to the place where his duties were to be discharged, form a permanent domestic establishment there, exercise there the civil rights and discharge the civil duties of an inhabitant, while he did no act and manifested no intent to have a domicil elsewhere, I think no one would say that the mere fact that he was himself liable to be called away by the orders of the Government would prevent his acquisition of a technical domicil at the place of the residence of himself and his family. In other words, I do not think a military officer incapable of acquiring a domicil. (Bruce _v._ Bruce, 2 Bos.
and Pul., 230; Munroe _v._ Dougla.s.s, 5 Mad. Ch. R., 232.) This being so, this case stands thus: there was evidence before the jury that Emerson resided about two years at Fort Snelling, in the Territory of Wisconsin. This may or may not have been with such intent as to make it his technical domicil. The presumption is that it was. It is so laid down by this court, in Ennis _v._ Smith, (14 How.,) and the authorities in support of the position are there referred to. His intent was a question of fact for the jury. (Fitchburg _v._ Winchendon, 4 Cush., 190.)
The case was taken from the jury. If they had power to find that the presumption of the necessary intent had not been reb.u.t.ted, we cannot say, on this record, that Emerson had not his technical domicil at Fort Snelling. But, for reasons which I shall now proceed to give, I do not deem it necessary in this case to determine the question of the technical domicil of Dr. Emerson.
It must be admitted that the inquiry whether the law of a particular country has rightfully fixed the _status_ of a person, so that in accordance with the principles of international law that _status_ should be recognised in other jurisdictions, ordinarily depends on the question whether the person was domiciled in the country whose laws are a.s.serted to have fixed his _status_. But, in the United States, questions of this kind may arise, where an attempt to decide solely with reference to technical domicil, tested by the rules which are applicable to changes of places of abode from one country to another, would not be consistent with sound principles. And, in my judgment, this is one of those cases.
The residence of the plaintiff, who was taken by his master, Dr.
Emerson, as a slave, from Missouri to the State of Illinois, and thence to the Territory of Wisconsin, must be deemed to have been for the time being, and until he a.s.serted his own separate intention, the same as the residence of his master; and the inquiry, whether the personal statutes of the Territory were rightfully extended over the plaintiff, and ought, in accordance with the rules of international law, to be allowed to fix his _status_, must depend upon the circ.u.mstances under which Dr. Emerson went into that Territory, and remained there; and upon the further question, whether anything was there rightfully done by the plaintiff to cause those personal statutes to operate on him.
Dr. Emerson was an officer in the army of the United States. He went into the Territory to discharge his duty to the United States. The place was out of the jurisdiction of any particular State, and within the exclusive jurisdiction of the United States. It does not appear where the domicil of origin of Dr. Emerson was, nor whether or not he had lost it, and gained another domicil, nor of what particular State, if any, he was a citizen.
On what ground can it be denied that all valid laws of the United States, const.i.tutionally enacted by Congress for the government of the Territory, rightfully extended over an officer of the United States and his servant who went into the Territory to remain there for an indefinite length of time, to take part in its civil or military affairs? They were not foreigners, coming from abroad. Dr. Emerson was a citizen of the country which had exclusive jurisdiction over the Territory; and not only a citizen, but he went there in a public capacity, in the service of the same sovereignty which made the laws.
Whatever those laws might be, whether of the kind denominated personal statutes, or not, so far as they were intended by the legislative will, const.i.tutionally expressed, to operate on him and his servant, and on the relations between them, they had a rightful operation, and no other State or country can refuse to allow that those laws might rightfully operate on the plaintiff and his servant, because such a refusal would be a denial that the United States could, by laws const.i.tutionally enacted, govern their own servants, residing on their own Territory, over which the United States had the exclusive control, and in respect to which they are an independent sovereign power.
Whether the laws now in question were const.i.tutionally enacted, I repeat once more, is a separate question. But, a.s.suming that they were, and that they operated directly on the _status_ of the plaintiff, I consider that no other State or country could question the rightful power of the United States so to legislate, or, consistently with the settled rules of international law, could refuse to recognise the effects of such legislation upon the _status_ of their officers and servants, as valid everywhere.
This alone would, in my apprehension, be sufficient to decide this question.
But there are other facts stated on the record which should not be pa.s.sed over. It is agreed that, in the year 1836, the plaintiff, while residing in the Territory, was married, with the consent of Dr.
Emerson, to Harriet, named in the declaration as his wife, and that Eliza and Lizzie were the children of that marriage, the first named having been born on the Mississippi river, north of the line of Missouri, and the other having been born after their return to Missouri. And the inquiry is, whether, after the marriage of the plaintiff in the Territory, with the consent of Dr. Emerson, any other State or country can, consistently with the settled rules of international law, refuse to recognise and treat him as a free man, when suing for the liberty of himself, his wife, and the children of that marriage. It is in reference to his _status_, as viewed in other States and countries, that the contract of marriage and the birth of children becomes strictly material. At the same time, it is proper to observe that the female to whom he was married having been taken to the same military post of Fort Snelling as a slave, and Dr. Emerson claiming also to be her master at the time of her marriage, her _status_, and that of the children of the marriage, are also affected by the same considerations.
If the laws of Congress governing the Territory of Wisconsin were const.i.tutional and valid laws, there can be no doubt these parties were capable of contracting a lawful marriage, attended with all the usual civil rights and obligations of that condition. In that Territory they were absolutely free persons, having full capacity to enter into the civil contract of marriage.
It is a principle of international law, settled beyond controversy in England and America, that a marriage, valid by the law of the place where it was contracted, and not in fraud of the law of any other place, is valid everywhere; and that no technical domicil at the place of the contract is necessary to make it so. (See Bishop on Mar. and Div., 125-129, where the cases are collected.)
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