Part 19 (1/2)
If, in Missouri, the plaintiff were held to be a slave, the validity and operation of his contract of marriage must be denied. He can have no legal rights; of course, not those of a husband and father. And the same is true of his wife and children. The denial of his rights is the denial of theirs. So that, though lawfully married in the Territory, when they came out of it, into the State of Missouri, they were no longer husband and wife; and a child of that lawful marriage, though born under the same dominion where its parents contracted a lawful marriage, is not the fruit of that marriage, nor the child of its father, but subject to the maxim, _partus sequitur ventrem_.
It must be borne in mind that in this case there is no ground for the inquiry, whether it be the will of the State of Missouri not to recognise the validity of the marriage of a fugitive slave, who escapes into a State or country where slavery is not allowed, and there contracts a marriage; or the validity of such a marriage, where the master, being a citizen of the State of Missouri, voluntarily goes with his slave, _in itinere_, into a State or country which does not permit slavery to exist, and the slave there contracts marriage without the consent of his master; for in this case, it is agreed, Dr.
Emerson did consent; and no further question can arise concerning his rights, so far as their a.s.sertion is inconsistent with the validity of the marriage. Nor do I know of any ground for the a.s.sertion that this marriage was in fraud of any law of Missouri. It has been held by this court, that a bequest of property by a master to his slave, by necessary implication ent.i.tles the slave to his freedom; because, only as a freeman could he take and hold the bequest. (Legrand _v._ Darnall, 2 Pet. R., 664.) It has also been held, that when a master goes with his slave to reside for an indefinite period in a State where slavery is not tolerated, this operates as an act of manumission; because it is sufficiently expressive of the consent of the master that the slave should be free. (2 Marshall's Ken. R., 470; 14 Martin's Louis. R., 401.)
What, then, shall we say of the consent of the master, that the slave may contract a lawful marriage, attended with all the civil rights and duties which belong to that relation; that he may enter into a relation which none but a free man can a.s.sume--a relation which involves not only the rights and duties of the slave, but those of the other party to the contract, and of their descendants to the remotest generation? In my judgment, there can be no more effectual abandonment of the legal rights of a master over his slave, than by the consent of the master that the slave should enter into a contract of marriage, in a free State, attended by all the civil rights and obligations which belong to that condition.
And any claim by Dr. Emerson, or any one claiming under him, the effect of which is to deny the validity of this marriage, and the lawful paternity of the children born from it, wherever a.s.serted, is, in my judgment, a claim inconsistent with good faith and sound reason, as well as with the rules of international law. And I go further: in my opinion, a law of the State of Missouri, which should thus annul a marriage, lawfully contracted by these parties while resident in Wisconsin, not in fraud of any law of Missouri, or of any right of Dr.
Emerson, who consented thereto, would be a law impairing the obligation of a contract, and within the prohibition of the Const.i.tution of the United States. (See 4 Wheat., 629, 695, 696.)
To avoid misapprehension on this important and difficult subject, I will state, distinctly, the conclusions at which I have arrived. They are:
_First._ The rules of international law respecting the emanc.i.p.ation of slaves, by the rightful operation of the laws of another State or country upon the _status_ of the slave, while resident in such foreign State or country, are part of the common law of Missouri, and have not been abrogated by any statute law of that State.
_Second._ The laws of the United States, const.i.tutionally enacted, which operated directly on and changed the _status_ of a slave coming into the Territory of Wisconsin with his master, who went thither to reside for an indefinite length of time, in the performance of his duties as an officer of the United States, had a rightful operation on the _status_ of the slave, and it is in conformity with the rules of international law that this change of _status_ should be recognised everywhere.
_Third._ The laws of the United States, in operation in the Territory of Wisconsin at the time of the plaintiff's residence there, did act directly on the _status_ of the plaintiff, and change his _status_ to that of a free man.
_Fourth._ The plaintiff and his wife were capable of contracting, and, with the consent of Dr. Emerson, did contract a marriage in that Territory, valid under its laws; and the validity of this marriage cannot be questioned in Missouri, save by showing that it was in fraud of the laws of that State, or of some right derived from them; which cannot be shown in this case, because the master consented to it.
_Fifth._ That the consent of the master that his slave, residing in a country which does not tolerate slavery, may enter into a lawful contract of marriage, attended with the civil rights and duties which belong to that condition, is an effectual act of emanc.i.p.ation. And the law does not enable Dr. Emerson, or any one claiming under him, to a.s.sert a t.i.tle to the married persons as slaves, and thus destroy the obligation of the contract of marriage, and b.a.s.t.a.r.dize their issue, and reduce them to slavery.
But it is insisted that the Supreme Court of Missouri has settled this case by its decision in Scott _v._ Emerson, (15 Missouri Reports, 576;) and that this decision is in conformity with the weight of authority elsewhere, and with sound principles. If the Supreme Court of Missouri had placed its decision on the ground that it appeared Dr.
Emerson never became domiciled in the Territory and so its laws could not rightfully operate on him and his slave; and the facts that he went there to reside indefinitely, as an officer of the United States, and that the plaintiff was lawfully married there, with Dr. Emerson's consent, were left out of view, the decision would find support in other cases, and I might not be prepared to deny its correctness. But the decision is not rested on this ground. The domicil of Dr. Emerson in that Territory is not questioned in that decision; and it is placed on a broad denial of the operation, in Missouri, of the law of any foreign State or country upon the _status_ of a slave, going with his master from Missouri into such foreign State or country, even though they went thither to become, and actually became, permanent inhabitants of such foreign State or country, the laws whereof acted directly on the _status_ of the slave, and changed his _status_ to that of a freeman.
To the correctness of such a decision I cannot a.s.sent. In my judgment, the opinion of the majority of the court in that case is in conflict with its previous decisions, with a great weight of judicial authority in other slaveholding States, and with fundamental principles of private international law. Mr. Chief Justice Gamble, in his dissenting opinion in that case, said:
”I regard the question as conclusively settled by repeated adjudications of this court; and if I doubted or denied the propriety of those decisions, I would not feel myself any more at liberty to overturn them, than I would any other series of decisions by which the law upon any other question had been settled. There is with me nothing in the law of slavery which distinguishes it from the law on any other subject, or allows any more accommodation to the temporary excitements which have gathered around it.... But in the midst of all such excitement, it is proper that the judicial mind, calm and self-balanced, should adhere to principles established when there was no feeling to disturb the view of the legal questions upon which the rights of parties depend.”
”In this State, it has been recognised from the beginning of the Government as a correct position in law, that the master who takes his slave to reside in a State or Territory where slavery is prohibited, thereby emanc.i.p.ates his slave.” (Winney _v._ Whitesides, 1 Mo., 473; Le Grange [Transcriber's Note: La Grange] _v._ Chouteau, 2 Mo., 20; Milley _v._ Smith, Ib., 36; Ralph _v._ Duncan, 3 Mo., 194; Julia _v._ McKinney, Ib., 270; Nat _v._ Ruddle, Ib., 400; Rachel _v._ Walker, 4 Mo., 350; Wilson _v._ Melvin, 592.)
Chief Justice Gamble has also examined the decisions of the courts of other States in which slavery is established, and finds them in accordance with these preceding decisions of the Supreme Court of Missouri to which he refers.
It would be a useless parade of learning for me to go over the ground which he has so fully and ably occupied.
But it is further insisted we are bound to follow this decision. I do not think so. In this case, it is to be determined what laws of the United States were in operation in the Territory of Wisconsin, and what was their effect on the _status_ of the plaintiff. Could the plaintiff contract a lawful marriage there? Does any law of the State of Missouri impair the obligation of that contract of marriage, destroy his rights as a husband, b.a.s.t.a.r.dize the issue of the marriage, and reduce them to a state of slavery?
These questions, which arise exclusively under the Const.i.tution and laws of the United States, this court, under the Const.i.tution and laws of the United States, has the rightful authority finally to decide.
And if we look beyond these questions, we come to the consideration whether the rules of international law, which are part of the laws of Missouri until displaced by some statute not alleged to exist, do or do not require the _status_ of the plaintiff, as fixed by the laws of the Territory of Wisconsin, to be recognised in Missouri. Upon such a question, not depending on any statute or local usage, but on principles of universal jurisprudence, this court has repeatedly a.s.serted it could not hold itself bound by the decisions of State courts, however great respect might be felt for their learning, ability, and impartiality. (See Swift _v._ Tyson, 16 Peters's R., 1; Carpenter _v._ The Providence Ins. Co., Ib., 495; Foxcroft _v._ Mallet, 4 How., 353; Rowan _v._ Runnels, 5 How., 134.)
Some reliance has been placed on the fact that the decision in the Supreme Court of Missouri was between these parties, and the suit there was abandoned to obtain another trial in the courts of the United States.
In Homer _v._ Brown, (16 How., 354,) this court made a decision upon the construction of a devise of lands, in direct opposition to the unanimous opinion of the Supreme Court of Ma.s.sachusetts, between the same parties, respecting the same subject-matter--the claimant having become nonsuit in the State court, in order to bring his action in the Circuit Court of the United States. I did not sit in that case, having been of counsel for one of the parties while at the bar; but, on examining the report of the argument of the counsel for the plaintiff in error, I find they made the point, that this court ought to give effect to the construction put upon the will by the State court, to the end that rights respecting lands may be governed by one law, and that the law of the place where the lands are situated; that they referred to the State decision of the case, reported in 3 Cus.h.i.+ng, 390, and to many decisions of this court. But this court does not seem to have considered the point of sufficient importance to notice it in their opinions. In Millar _v._ Austin, (13 How., 218,) an action was brought by the endorsee of a written promise. The question was, whether it was negotiable under a statute of Ohio. The Supreme Court of that State having decided it was not negotiable, the plaintiff became nonsuit, and brought his action in the Circuit Court of the United States. The decision of the Supreme Court of the State, reported 4 Ves., L.J., 527, was relied on. This court unanimously held the paper to be negotiable.
When the decisions of the highest court of a State are directly in conflict with each other, it has been repeatedly held, here, that the last decision is not necessarily to be taken as the rule. (State Bank _v._ Knoop, 16 How., 369; Pease _v._ Peck, 18 How., 599.)
To these considerations I desire to add, that it was not made known to the Supreme Court of Missouri, so far as appears, that the plaintiff was married in Wisconsin with the consent of Dr. Emerson, and it is not made known to us that Dr. Emerson was a citizen of Missouri, a fact to which that court seem to have attached much importance.
Sitting here to administer the law between these parties, I do not feel at liberty to surrender my own convictions of what the law requires, to the authority of the decision in 15 Missouri Reports.