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cannot be a citizen of the United States; and I regret I must go further, and dissent both from what I deem their assumption of authority to examine the constitutionality of the Act of Congress commonly called the Missouri Compromise Act, and the grounds and conclusions announced in their opinion.

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But as, in my opinion, the Circuit Court had jurisdiction, I am obliged to consider the question whether its judgment on the merits of the case should stand or be reversed.

The residence of the plaintiff in the State of Illinois, and the residence of himself and his wife in the Territory acquired from France lying north of latitude thirty-six degrees thirty minutes, and north of the State of Missouri, are each relied on by the plaintiff in error. As the residence in the Territory affects the plaintiff's wife and children as well as himself, I must inquire what was its effect.

The general question may be stated to be, whether the plaintiff's status, as a slave, was so changed by his residence within that Territory, that he was not a slave in the State of Missouri, at the time this action was brought.

In such cases, two inquiries arise, which may be confounded, but should be kept distinct.

The first is, what was the law of the Territory into which the master and slave went, respecting the relation between them?

The second is, whether the State of Missouri recognizes and allows the effect of that law of the Territory, on the status of the slave, on his return within its jurisdiction...

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 emancipation 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, constitutionally 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 opera

tion on the status of the slave, and it is in conformity with the rules of international law that this change of status should be recognized 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.

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 emancipation. . . .

I have thus far assumed, merely for the purpose of the argument, that the laws of the United States, respecting slavery in this Territory, were Constitutionally enacted by Congress. It remains to inquire whether they are constitutional and binding laws.

But it is insisted, that whatever other power Congress may have respecting the Territory of the United States, the subject of negro slavery forms an exception. . .

While the regulation is one "respecting the Territory," while it is, in the judgment of Congress, "a needful regulation," and is thus completely within the words of the grant, while no other clause of the Constitution can be shown, which requires the insertion of an exception respecting slavery, and while the practical construction for a period of upwards of fifty years forbids such an exception, it would, in my opinion, violate every sound rule of interpretation to force that exception into the Constitution upon the strength of abstract political reasoning, which we are bound. to believe the people of the United States thought insufficient to induce them to limit the power of Congress, because what they have said contains no such limitation.

But it is further insisted that the Treaty of 1803, between the United States and France, by which this Territory was acquired, has so restrained the constitutional powers of Congress, that it cannot, by law, prohibit the introduction of slavery into that part of this Territory north and west of Missouri, and north of thirtysix degrees thirty minutes north latitude.

By a treaty with a foreign nation, the United States may rightfully stipulate that the Congress will or will not exercise its legis

lative power in some particular manner, on some particular subject. .. But that a treaty with a foreign nation can deprive the Congress of any part of the legislative power conferred by the people, so that it no longer can legislate as it was empowered by the Constitution to do, I more than doubt. . . .

But, in my judgment, this Treaty contains no stipulation in any manner affecting the action of the United States respecting the Territory in question. . . . In my opinion, this Treaty has no bearing on the present question.

For these reasons, I am of opinion that so much of the several Acts of Congress as prohibited slavery and involuntary servitude within that part of the Territory of Wisconsin lying north of thirtysix degrees thirty minutes north latitude, and west of the River Mississippi, were constitutional and valid laws.


In my opinion, the judgment of the Circuit Court should be reversed, and the cause remanded for a new trial.

No. 114. Lecompton Constitution

November 7, 1857

A FREE State convention sitting at Topeka, in Kansas Territory, from Oct. 23 to Nov. 5, 1855, drew up a State constitution prohibiting slavery, which was submitted to the people Dec. 15, and adopted by a vote of 1,731 to 46, only free State men voting. A bill to admit Kansas under this constitution passed the House July 3, 1856, but failed in the Senate. A free State legislature, assuming to meet under the Topeka constitution, was dispersed by the United States troops, and a period of civil war in the Territory followed. September 5, 1857, a convention called by the proslavery legislature of the Territory met at Lecompton and drew up a constitution, which was submitted to the people for adoption "with slavery" or "without slavery." The free State men, who objected to having the Lecompton constitution on any terms, refrained from voting, and Dec. 21 the constitution "with slavery" was adopted by a vote of 6,143, against 589 for the constitution "without slavery." In the meantime, however, the free State party had got control of the Territorial legislature, and Jan. 4, 1858, the constitution was rejected by a majority of more than 10,000. A bill to admit Kansas under the Lecompton constitution passed the Senate March 23, 1858, by a vote of 33 to 25. April 1 the House, by a vote of 120 to 112, substituted a bill resubmitting the constitution to popular vote. The two Houses then compromised on the "English bill" (act of May 4, 1858), "according to which a substitute for the land ordinance of the Lecompton constitution was to be submitted to

popular vote in Kansas; if it was accepted, the State was to be considered as admitted; if it was rejected, the Lecompton constitution was to be considered as rejected by the people, and no further constitutional convention was to be held until a census should have shown that the population of the Territory equalled or exceeded that required for a representative" (Johnston). August 3 the land ordinance was rejected by a vote of 11,088 to 1,788. The Wyan

dotte constitution, prohibiting slavery, was ratified by popular vote Oct. 4, 1859. Under this constitution Kansas was admitted to the Union Jan. 29, 1861.

The following extracts comprise the provisions of the Lecompton constitution relating to slavery, the status of negroes, and ratification.

REFERENCES. Text in Poore's Federal and State Constitutions, I., 598613, passim. For the struggle in Congress over the admission of Kansas, see the House and Senate Journals, 34th, 35th, and 36th Cong., and the Cong. Globe.


SEC. 25. It shall be the duty of all civil officers of this State to use due diligence in the securing and rendition of persons held to service or labor in this State, either of the States or Territories of the United States; and the legislature shall enact such laws as may be necessary for the honest and faithful carrying out of this provision of the constitution.



SECTION 1. The right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase is the same, and as inviolable as the right of the owner of any property whatever.

SEC. 2. The legislature shall have no power to pass laws for the emancipation of slaves without the consent of the owners, or without paying the owners previous to their emancipation a full equivalent in money for the slaves so emancipated. They shall have no power to prevent emigrants to the State from bringing with them such persons as are deemed slaves by the laws of any one of the United States or Territories, so long as any person of the same age or description shall be continued in slavery by the laws of this State: Provided, That such person or slave be the bona-fide property of such emigrants: And provided also, That laws may be passed to prohibit the introduction into this State of

slaves who have committed high crimes in other States or Territories. They shall have power to pass laws to permit the owners of slaves to emancipate them, saving the rights of creditors, and preventing them from becoming a public charge. They shall have power to oblige the owners of slaves to treat them with humanity, to provide for them necessary food and clothing, to abstain from all injuries to them extending to life or limb, and, in case of their neglect or refusal to comply with the direction of such laws, to have such slave or slaves sold for the benefit of the owner or


SEC. 3. In the prosecution of slaves for crimes of higher grade than petit larceny, the legislature shall have no power to deprive them of an impartial trial by a petit jury.

SEC. 4. Any person who shall maliciously dismember or deprive a slave of life shall suffer such punishment as would be inflicted in case the like offence had been committed on a free white person, and on the like proof, except in case of insurrection of such slave.


23. Free negroes shall not be permitted to live in this State under any circumstances.


SEC. 7. This constitution shall be submitted to the Congress of the United States at its next ensuing session . .


Before this constitution shall be sent to Congress, asking for admission into the Union as a State, it shall be submitted to all the white male inhabitants of this Territory, for approval or disapproval, as follows: . . . The voting shall be by ballot. The judges of said election shall cause to be kept two poll-books by two clerks, by them appointed. The ballots cast at said election shall be endorsed, "Constitution with slavery," and "Constitution with no slavery." . . . The president [of the convention] with two or more members of this convention, shall examine said poll-books, and if it shall appear upon said examination that a majority of the legal votes cast at said election be in favor of the "Constitution with slavery," he shall immediately have the same transmitted to the Congress of the United States, as herein before

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