# Groves v. Slaughter

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United States Supreme Court
40 U.S. 449
Groves v. Slaughter
ERROR from the Circuit Court for the Eastern District of Louisiana.
In the first case, the defendant in error, on the 11th day of February 1839, had instituted a suit, by petition, in the circuit court of Louisiana, against the plaintiffs in error, on a promissory note for the sum of $7875, dated at Natchez, on the 20th of December 1836, payable at the Commercial Bank at Natchez, drawn by John W. Brown, to the order of, and indorsed by, R. M. Roberts, and also indorsed by Moses Groves and James Graham, payable at the Commercial Bank at Natchez, twenty-four months after date; which note had been regularly protested for non-payment.
In the second case, the suit had been instituted on the 5th day of April 1838, on a promissory note for $7000, also drawn by John W. Brown, payable at the Commercial Bank at Natchez, to R. M. Roberts, or order, at Natchez, and indorsed by him and the other plaintiffs in error, dated 20th December 1836, payable and negotiable, twelve months after date, and regularly protested for non-payment.
The answers of the plaintiffs in error, in both the cases, stated that the notes were given by the maker, Brown, to the plaintiff, in part payment of the price of certain slaves purchased by him from the plaintiff, and the notes were given at Natchez, in the state of Mississippi, on or about the day of their dates, respectively. That the petitioner, Robert Slaughter, did introduce into the state of Mississippi, after the 1st day of May 1833, the slaves for which the notes were given, as merchandize, and for sale; and did sell the slaves, so imported, to the said Brown; and did take, in part payment thereof, the said notes, whiah had been indorsed in bank by the respondents, to accommodate the said Brown. The respondents alleged, that the cause or consideration for which the notes were given was null and void, the notes were null and void, and of no effect; because the contracts on which they are found were in direct violation of the constitution of the state of Mississippi, which expressly prohibits the introduction of slaves into that state, as merchandize, or for sale, after the first day of May 1833.
Afterwards, on the 14th of June 1839, the following agreement was filed, in each of the cases, as a statement of facts by the parties. 'In this case, it is consented, that the question of fraud is waived by defendants, except as hereinafter reserved; the case is to be defended solely on the question of the legality and validity of the consideration for which the notes sued on were given. It is admitted, that the slaves for which said notes were given, were imported into Mississippi, as merchandize, and for sale, in the year 1835 and 1836, by plaintiff, but without any previous agreement or understanding, express or implied, between plaintiff and any of the parties to the note, but for sale generally, to any person who might wish to purchase. The slaves have never been returned to plaintiff, nor tendered to him by any of the parties to the notes sued on.'
The constitution of the state of Mississippi, adopted in 1832, provided, in the 2d section, title 'slaves,' as follows: 'The introduction of slaves into this state, as merchandize, or for sale, shall be prohibited from and after the first day of May 1833: provided, that actual settler or settlers shall not be prohibited from purchasing slaves, in any state in this Union, and bringing them into this state for their own individual use, till the year 1845.'
The cases were argued by Gilpin and Walker, for the plaintiffs in error; and by Jones, Clay and Webster, for the defendants.
Gilpin, for the plaintiffs in error.-This is a case which involves but a single question, yet, that it is one of surprising interest, is proved by the ability with which it has been discussed, the zeal and eloquence with which every position in relation to it has been scanned. The simple and single inquiry is, whether a contract, directly opposed to a constitutional provision, not accompanied with any legislative action, will be carried into effect by the judicial tribunals.
The first constitution of the state of Mississippi, was adopted on the 15th of August, 1817, and solemnly approved by congress (3 U.S. Stat. 472) and by the president, on the 10th December of the same year. In its article entitled 'slaves,' was this provision: 'The general assembly shall have no power to prevent emigrants to this state from bringing with them such persons as are deemed slaves by the laws of any one of the United States, so long as any persons 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 afterwards, the same article continues, 'They shall have full power to prevent slaves from being brought into this state as merchandize.' In the year 1822, a law was passed (Revised Code of Miss. 155), declaring that if slaves were brought for sale, he who brought them must have a certificate, made before certain persons, of the place from which they came, to serve as evidence of their good character; and a severe penalty was imposed for a violation of it. In the same year, a law was passed (Revised Code of Miss. 154), declaring that persons held to service for life, in other states, and brought into the state of Mississippi, pursuant to law, and no others, should be deemed slaves. On the second Monday of September 1832, a convention met at Jackson, to amend the state constitution. The very first amendment proposed by the committee was to alter the article 'slaves,' by striking out the words, that the legislature 'shall have power to prevent slaves being brought into this state as merchandize,' and to insert in lieu of them, 'the introduction of slaves into this state, as merchandize, shall be prohibited after the ___ day of _____ 18__.' As soon as it came up for discussion, it was proposed to date the prohibition from May 1833. It was moved to make it 1899. The former was adopted. It was then proposed to add, that 'no law shall be passed before 1850, to prevent any citizen of the state from purchasing and bringing in slaves for his individual use.' This also passed. In the subsequent stages of the proceedings of the convention, the subject became matter of long debate, and was finally referred to a committee, of which Judge Trotter was a member, who reported the clause as it had stood before; leaving to the legislature the power to prevent the importation of slaves, as merchandize. To this, a clause was moved as an amendment, in the words now forming a part of the constitution, and adopted by a vote of twenty-six to seventeen; Judge Trotter and Governor Lynch both voting against it. That clause, thus adopted in lieu of that which was in the constitution of 1817, is in the following words: '§ 2. The introduction of slaves into this state, as merchandize, or for sale, shall be prohibited, from and after the 1st day of May 1833: provided, that the actual settler or settlers shall not be prohibited from purchasing slaves in any state of this Union, and bringing them into this state for their own individual use, until the year 1845.' The constitution also went on to declare, that all laws then in force, not repugnant to the constitution, should continue to operate till they expired by their own limitation, or till they should be repealed.
On the 2d of March 1833, the legislature, being in session, passed a law to submit to the people an amendment of the new constitution, to restore to the legislature power to regulate this subject, without the restraint of a constitutional provision. They enacted (Laws of Mississippi 478), 'that the second section of the seventh article of the constitution of the state, under the title or head 'slaves,' be so altered, changed and amended, as to read as follows, viz: § 2. The legislature of this state shall have, and are hereby vested with, power to pass, from time to time, such laws, regulating or prohibiting the introduction of slaves into this state, as may be deemed proper and expendient.' To make this law effectual to change the constitution, it was necessary that it should be approved by a majority of the citizens of the state, qualified to vote for members of the legislature. This was not done, and the clause in the constitution, therefore, remained as it was adopted in 1832.
When, on the meeting of the legislature, it was found that this proposed amendment was not adopted, the senate passed a bill again to submit it in exactly the same terms, to the people; thus showing that, in their opinion, a constitutional sanction was necessary to enable the legislature to regulate the subject. The house refused to concur in this; but both bodies united in passing the law of the 23d of December 1833 (Laws of Mississippi 525), to tax vendors of slaves. A more certain indication that this law was not meant to apply to importers of slaves for sale, but solely to citizens and residents who had occasion to vend them, could not be given. The house, at the same session, introduced a bill to provide penalties in aid of the constitutional prohibition. It did not then pass, but it became a law on the 13th of May 1837, which, owing to the biennial sessions of the legislature, and the omission to hold one at the following regular term, was, in fact, at the next meeting of that body. This law (Laws of Mississippi 758) enforced the prohibition of importations for sale, by severe penalties, declaring that any persons who should introduce or import slaves into the state, as merchandize, should be guilty of a misdemeanor, and be fined and imprisoned.
In the year 1835 or 1836, as stated in the record, Robert Slaughter, the defendant in error, introduced into the state of Mississippi a number of slaves. It is admitted, and makes part of the case, that they were so introduced and imported, 'as merchandize, and for sale.' They were purchased at Natchez, in Mississippi, on the 20th of December 1836, by a person named Brown, who had received two certain accommodation notes, indorsed for his use, by the plaintiffs in error, Groves and Graham. In payment for the slaves purchased from Slaughter, he gave him the two notes, so indorsed, one for $7000, payable in twelve months after date; the other for $7875, payable in twenty-four months after date. It is admitted, that this proceeding took place, without any agreement or understanding, express or implied, between the two indorsers who now prosecute this writ of error, and the parties to the note.
When the notes became due, the indorsers refused to pay them, or in any way to become parties to a transaction which was in direct violation of the laws of Mississippi, and suits were instituted against them in the circuit court of Louisiana. Evidence appears to have been taken relative to fraud and collusion charged; but it was finally agreed to waive that question, and to leave the case to depend upon the legality and validity of the notes which were the consideration of the plaintiff's claim. The district judge, sitting as a circuit judge in the court below, having decided that they were a valid consideration, upon which the plaintiff could recover, the correctness of that decision is now to be examined.
It will thus be seen, that Slaughter, in the year 1836, and in the state of Mississippi, sold to Brown, slaves introduced by him, as merchandize, and for sale, into that state, in the year 1835 or 1836; and that he received in payment therefor, these notes, indorsed by Groves and Graham, and still holds them. Is this such a legal, valid and binding contract between these indorsers and the holder of the notes, as a court of justice will enforce? To make a contract legal, valid and binding, it is not sufficient, that there should be an agreement on one side, to do a particular act, as to pay a certain sum of money, on a certain day; but that the consideration of this agreements, or the act for obtaining the performance of which it is made, should be, in itself, legal and sufficient. Plowd. 5-6, 17; 5 East 16; 7 T. R. 350. The act to be performed, in this case, was the completion of a transaction, in direct violation of a provision in the constitution of the state of Mississippi, the place of contract. It was, that Slaughter would sell to Brown, slaves imported by him into that state, in 1835 or 1836, for the express purpose of selling them; Slaughter thus selling them, and Brown thus receiving them, in the face of the constitutional provision.
No language can make such a transaction more certainly illegal, than that used in the present constitution of Mississippi. It is an absolute and positive prohibition, going into full effect on the 1st of May 1833, and making, from that time, the introduction of slaves, for the purposes of sale, a direct violation of the fundamental law of that state. An attempt has been made, on the argument of the case in this court, to avoid the force of this language, by construing it into a direction for future action by the legislature, instead of regarding it as a present and positive command, deferred only in its operation for a few months. But this construction cannot be sustained, either by the language of the clause itself, or by a reference to the language of other sections of the constitution; or by a comparison with the provisions of the previous constitution of the state, and the acts of its legislature; or by the construction given to similar language, in other laws and public acts; or by the judicial interpretation of this identical clause, by every tribunal of the state of Mississippi. There is nothing in the language of the section which contemplates future action, to constitute the prohibition; what is future relates merely to the time when the prohibition is to take effect. Not intending to enforce immediate prohibition, present words could not be used. To say that a thing is now prohibited, which is now permitted, involves great inaccuracy of language. If, as was, no doubt, the case, the people of Mississippi intended that a person might introduce slaves for sale, until the 1st of May 1833, but that on that day his right to do so should cease; it seems difficult to imagine how they could have expressed their intention in clearer language. They forbade it. There is nothing in forbidding a thing to be done which requires future action. Future action may be necessary to punish a violation of the prohibition; but that is a matter totally different from the prohibition itself. The act of the legislature, in 1837, makes a violation of this prohibition an offence punishable by fine and imprisonment, but this is not the prohibition-that is already complete. Suppose, this act of the legislature, instead of imposing a fine and imprisonment, had gone no further than the constitution itself has done, and had enacted that such importation should be prohibited after a certain day, will it be contended, that when that day arrived, a still further law was necessary? A law containing no penalty for transgression may be defective in its operation on the individual, but it is complete to establish the nature of the offence. In Mississippi, a traffic in slaves existed, which the people of that state desired to stop. They declared, that it should stop after a certain day. They do not say, a law shall be passed to stop it, but they say it shall stop. If they had intended to leave it to future legislation, they would have said 'may' be prohibited; but they do not do so. They declare, that the act shall cease on that day. No legislative action is necessary to complete the prohibition; it is, at best, surplusage; it can do again only what the convention has done before; it can only say, as the constitution has said, this traffic shall stop; if anything was to be done on the first of May, legislative action might be necessary; where there is nothing to be done, it cannot be. And how fatal would be the consequence, if it were otherwise; if legislation is necessary to the prohibition, it may be refused; and thus we have that actually done, which the words of the constitution forbid to be done.
If we were even to admit (for the sake of argument), that something is requisite to make the prohibition complete on the 1st of May; still, what is there to require it to be legislative action? It is said, that the introduction of slaves must be prohibited on that day 'by law.' What authorizes the insertion of those words? Why not fill the hiatus with the words 'by this constitution;' or, 'by the action of the courts?' To assume there is a blank to be filled, and then to fill it in the manner best suited to the case of the plaintiff, may be an easy way to make the constitution favorable to his construction of it, but can hardly be regarded the proper mode of interpreting a written instrument. It is submitted, then, that this is, by its terms, an absolute prohibition, existing, proprio vigore, on and after the 1st of May 1833.
The constitution of Mississippi is full of phrases which illustrate and confirm this view of the section in question. It declares, that 'the exercise of religious worship shall be free to all persons.' Is a law necessary to carry this declaration into effect? It is true, that without a subsequent law, he who interferes with the exercise of another's worship may not be punished, but surely, the privilege is derived, or the right is acknowledged, not under the law, but under the guarantee of the constitution, which is complete. So, there are numerous prohibitory provisions, directing that warrants shall not be issued without certain pre-requisities; that property shall not be taken, except in certain cases; that offices shall not be held beyond a limited term; that persons guilty of bribery shall be disqualified from holding office; all these have a future phraseology, especially the latter; yet it will hardly be contended, that the prohibition was not absolute and complete, without any further law. On the other hand, where future legislation is necessary, it is so provided. It is said, 'the judges of all courts shall be conservators of the peace, and shall be, by law, vested with ample powers.' The authority is present and immediate; the particular powers are to come from future legislation; and in that case, it is so declared. Again, in the clause which, per se, disqualifies for bribery, it is provided, that the legislature may disqualify for crime. Numerous similar clauses, contemplating future legislative action, may be cited. But perhaps, the strongest illustration is in the very article on 'slaves.' In that, all the acts contemplated are future; yet some of them are to result from legislation (Rev. Stat. 34-5), some spring directly from the constitution. Is it possible, that this distinction is without meaning? Is it possible, that the constitution should permit a discretion to the legislature, in one clause of a section, omit it in another, and permit it again in a third, without evidently intending to make that distinction which is apparent from its letter?
The inference which thus results from the language of this provision, and from a comparison of it with that used in other parts of the same instrument, becomes more certain, when we examine the proceedings of the convention that framed the constitution, and of the legislature, in regard to the clause in question. The former constitution made this prohibition a future legislative act, just as it left the provisions in regard to the emancipation and treatment of slaves to be matters of legislation. This was the only power in regard to slaves which the amended constitution did not continue with the legislature. By what proper inference, can we suppose, they intended it should remain with that body? The former constitution gave it to the legislature; the people altered the clause that did so; of course, they meant to establish the provision, independently of its action. So they declared, the prohibition should go into operation, on the 1st of May 1833. Did they fix that early day, before which but one short session of a legislature could occur; and yet give it an option to defeat their express provision? Had they intended to do so, would they not have used the language used in the constitution of the United States, when they did intend to leave this option to congress; the importation 'shall not be prohibited by the congress, prior to the year 1800?' Const. I. 9. So, when the legislature desired to prevent the prohibition from taking effect, they passed a law to obtain an amendment of the new constitution, although it had not yet gone into operation, so as to restore this subject to the legislature, and permit them to enforce the prohibition by law, at their discretion; a change which the people refused to confirm. Had that legislature considered any further law necessary to enforce this prohibitory clause, their proposed amendment was totally superfluous.
This idea, that the use of a phrase relating to a future event, necessarily requires future action, has been repudiated more than once by this court; and that, not only in cases which, by merely prohibiting a thing to be done, do not, and cannot, require a direct act, but in cases where a positive and affirmative result was to arise from the language used. In the case of the Florida treaty, this court said: 'although the words 'shall be ratified and confirmed,' are properly words of contract, stipulating for some future legislative act; they are not necessarily so. They may import that they 'shall be ratified and confirmed' by force of the instrument itself.' It has been attempted to impair the effect of this declaration, by referring to the previous construction of the same clause in the case of Foster v. Neilson, and to ascribe the change to a mere difference in the translation of certain Spanish words: but surely this view is not sustained. The question in both cases, was decided on the whole scope of the treaty provision; on the extent to which a previous grant was valid after the cession; whether further legislation was or was not necessary. In Foster v. Neilson, it is true, the majority of the court held it to be so; but Chief Justice MARSHALL and another judge held, that the words, 'shall be confirmed,' might be regarded as making the grants as complete under the government of the United States as under that of Spain. When, afterwards, in the cases of Arredondo (6 Pet. 691) and Percheman (7 Ibid. 51), the clause was more fully considered, with reference to the laws of nations and the whole scope and bearing of the treaty, this construction was given to them by the whole court. It is true, that the Spanish version is referred to; but this is not assigned as the reason of the charge, but merely as evidence of the correctness of the later construction. At all events, it shows, that the words 'shall be,' do not necessarily denote future action, where the scope and intent of the instrument give them a present and positive character. In the treaty of 1778, with France, it was stipulated, that the subjects of France 'shall not' be reputed to be aliens; and in the treaty of peace, in 1783, with Great Britain, the ninth article provided that British subjects 'shall continue' to hold lands; these clauses were held to confer a present right to hold property. Ware v. Hylton, 3 Dall. 235; The Peggy, 1 Cranch 109. So, in the convention with France, in 1801, the stipulation that property 'shall be' restored, was held to operate as an immediate restoration. 14 Pet. 412. If words like these, forming a contract between two nations, instead of being, as a state constitution is, an ordinance, an act of supreme authority, a decree-if words in a treaty between two parties, providing for a thing to be done, can be construed, where such is the intention of the contracting parties, to have a present signification, who can doubt, that these words, merely prohibitory in regard to the conduct of the citizen, are to be so construed?
And so has thought every court of the state of Mississippi. In a succession of cases, the construction of this clause of the constitution has come before the different tribunals of that state. Each has decided, that, so far as the construction of this clause was to be considered, it was unquestionably a prohibition, proprio vigore, of the act of importation for purposes of sale. Judge NICHOLSON, the presiding judge in one of the circuits of the state, is reported as having so decided, though we have not the case before us. Chancellor BUCKNER, in the case of Glidewell v. Hite, of which a MS. report has been read, decides, that the contract of sale is valid, because it is only importation, not sale, which is prohibited; but he holds distinctly and unequivocally, that the prohibition (whichever it may be) is complete, under the constitution, and not dependent on any subsequent legislative act. The clause in the constitution, he says, 'points out, and defines, what should constitute the evil or offence which the constitution intended to guard against and prohibited.' 'I mean to declare,' says the chancellor, afterwards, 'that the moment the negroes were introduced, as merchandize, or for sale, the offence was at once complete; no further step was necessary to bring it within the intent and meaning of the prohibitory clause of the constitution.' 'Suppose,' he again observes, 'that the defendants had been indicted under the clause of the constitution in question, would anything have been necessary to sustain the prosecution, further than the single proof of the purpose of the act of introduction, accompanied with the proof of offering them for sale.' But the court of errors, the highest tribunal of the state, was still more emphatic. The case of Green v. Robinson (4 Miss. 105), was an appeal from a similar decision of Chancellor BUCKNER. He had decided in favor of the validity of the sale, on the ground, that the prohibitory clause extended only to the importation; and also in favor of the defendant, because the plaintiff had neglected to avail himself, in a suit at law, of this defence. The court of errors, in reviewing the chancellor's decision, use the following language: 'That it is competent for the people in convention, to establish a rule of conduct for themselves, and to prohibit certain acts, deemed inimical to their welfare, is a proposition which cannot be controverted. And such rule, and such prohibition, will be as obligatory, as if the same had been adopted by legislative enactment. In the former case, it is endowed with greater claims upon the approbation and respect of the country, by being solemnly and deliberately incorporated with the fundamental rules of the paramount law, and thus placed beyond the contingency of legislation. It is difficult to conceive, in what better or more appropriate language the convention could have designated its will, or declared the principle of public policy intended to be enforced. It has been argued, that this provision in the constitution is merely directory to the legislature. This interpretation is opposed, as I conceive, to the plain language of the provision itself, as well as to the obvious meaning of the convention. It cannot surely be maintained, that this provision is less a prohibition against the introduction of slaves as merchandize, because it is not clothed with the sanction of pains and penalties expressed in the body of it. That belonged appropriately to the legislature. Their neglect or refusal to do so, might lessen the motives to obedience, but could not impair the force of the prohibition. It cannot be doubted, that, if the legislature, instead of remaining inactive, had passed a law to authorize the introduction of slaves for sale, that such act would have been void.' The language thus used, which is conclusion as to the judgment and opinions of the judicial tribunals of Mississippi, was intended to settle, finally and decisively, the question of the validity of these contracts. It was not extra-judicial, for, though the judgment of the court depended on other grounds, yet this was expressly brought under their review. The chancellor declared, that his judgment was so given, as to 'put the point in a train for ultimate decision,' by the court of appeals. Nor should it be forgotten that the opinion was delivered by Judge TROTTER, himself, as has been seen, not merely a member of the convention which inserted this very clause in the state constitution; but one of those who voted, and preferred to leave to the legislature the authority of making the prohibition, instead of thus inserting it absolutely in the fundamental law.
It is submitted, that, under the well-established rule of this court, these decisions of the judicial tribunals of Mississippi, are conclusive of the present controversy. No point is more authoritatively settled, than that the construction given to the constitution and laws of a state, not conflicting with those of the Union, by the courts of the state, will be adopted by this court. Green v. Neal, 6 Pet. 295.
And how is it attempted to obviate this clear intention of the people of Mississippi, as derived from the plain letter of their constitution; from a comparision of this, with other language of that instrument; from a review of successive efforts made by them to effect this object; from that interpretation of their language which is consistent with the just and settled rules of construction; from the direct and authoritative exposition given by their own courts of justice? How is it attempted to obviate this intention thus expressed? It has been done, by saying, that the legislature of Mississippi regarded the clause of the constitution, in 1833, as merely permissive to the legislature; and that Governor Lynch, in 1837, so regarded it. If this were so, would it be an answer? It was evidently the wish of the legislature, to retain a power that the people had taken from them; they tried to obtain it by an amendment of the constitution; it is natural, they should seek it, that mode failing, by ingenious interpretation, If it were so, their construction could avail nothing against that derived from the rules already stated. But it is not so. The act of March 1833 shows, the legislature thought an amendment of the constitution necessary to prevent the immediate and positive operation of the prohibitory clause. The act of December 1833 does not relate to those who imported slaves for sale, in violation of the law, but to transient merchants, or persons selling their own slaves. As to the recommendations of Governor Lynch, they were to give effect to the provision by adequate penalties. The sales might be made for cash, the payment on delivery, in such case, all the evils he adverts to would occur, and the contract be completed, notwithstanding the prohibition. So, too, in cases where the person seeking to discharge himself was he who received the slaves; a party to the illegal transaction; the courts would not interfere on his behalf; and thus the provision of the constitution would be violated. Cases like the present, where the defendant is ignorant of the transaction, and, from that circumstance, could readily receive the aid of a court, might be expected seldom to occur. These objections, therefore, if they could have weight against such arguments as those presented to sustain the constitution of Mississippi, are not, in reality, when properly examined, objections to our construction of that instrument.
It may, then, be confidently said, that after the 1st of May 1833, it was unlawful, by the constitution of Mississippi, to introduce slaves into that state for sale, or as merchandize. Was such a provision in that constitution a legal one in itself? A constitution is the will, deliberately expressed, of the whole people of a state; the most binding and solemn compact; original and organic; restrained in nothing which the people may desire to introduce, unless so restrained by the previous compact of the same people with their fellow-citizens of the rest of the Union. If, then, it has been shown, that the people of Mississippi did prohibit the importation of slaves, as merchandize, after 1st May 1833, that prohibition is binding and operative, unless it be contrary to the constitution of the United States. Is it so?
It is said, that it is, because the constitution gives to congress the power 'to regulate commerce with foreign nations, among the several states, and with the Indian tribes.' Is the prohibition to import slaves into Mississippi, for sale within that state, such a regulation of commerce among the several states, as congress had the sole authority to make? It is submitted-1. That it is not a regulation of commerce among the states. 2. That if it were, it is one excepted from this power of congress, and remains in the state. 3. That if it were vested in congress, it may also be exercised by the state.
I. The regulation of commerce among the several states has been defined with such great simplicity, distinctness and precision by Chief Justice MARSHALL, that it is useless to speculate upon it for ourselves. He says, in the case of Gibbons v. Ogden, 9, Wheat. 194, 'It is not intended to say, that these words' (to regulate commerce among the several states) 'comprehend that commerce which is completely internal, which is carried on between man and man in a state, or between different parts of the same state, and which does not extend to or affect other states. Such a power would be inconvenient, and is certainly unnecessary. Comprehensive as the word 'among' is, it may very properly be restricted to that commerce which concerns more states than one. The phrase is not one which would probably have been selected to indicate the completely interior traffic of a state, because it is not an apt phrase for that purpose; and the enumeration of the particular classes of commerce to which the power was to be extended, would not have been made, had the intention been to extend the power to every description. The enumeration pre-supposes something not enumerated; and that something, if we regard the language or subject of the sentence, must be the exclusively internal commerce of a state. The genius and character of the whole government seem to be, that its action is to be applied to all the external concerns of the nation, and to those internal concerns which affect the states generally; but not to those which are completely within a particular state, which do not affect other states, and with which it is not necessary to interfere for the purpose of executing some of the general powers of the government. The completely internal commerce of a state, then, may be considered as reserved for the state itself.'
Is it possible to conceive a case falling more clearly within this definition? Is not this a commerce carried on between man and man, in the state of Mississippi? Is it not a matter that does not affect other states? Is it necessary for the general government to interfere, for the purpose of executing its powers? It is the importation of a slave; the sale of a slave. His being a slave; his being a subject of sale, is a matter depending solely on the state of Mississippi. It is by the local law alone, that the subject-matter of importation and sale is created. No other state is affected by its existence or non-existence. It is not necessary for any powers of the general government, that it should be able to enforce this sale or this importation, unless it has the power not to regulate, but to create articles of commerce. It does not differ, in principle, from the very common prohibition against the introduction of lottery-tickets, or of bank-notes under a certain denomination. Whether these are, or are not, articles passing in trade in a state, depends on her own laws. Could congress, because they may be articles of traffic, deprive a state of her right to admit or exclude them? Suppose, Mississippi had said, no negroes shall be sold as slaves, within her limits; can congress interfere, to abolish this, on the ground that it affects other states? That will not be contended; yet, if it cannot, then its interference to regulate the disposition of them-the manner in which they are to be dealt with-is assuming a power over a subject-matter which the states themselves can abolish or create.
To avoid the force of this inference, a distinction has been taken, in regard to the importation of slaves into the slave-holding and non-slaveholding states. But where is this distinction found? Certainly not in the letter of the constitution; certainly not in its spirit. It is admitted, that the importation of a slave into New York, where the sale as a slave, and his detention in slavery, are forbidden, may be prohibited; yet it is urged, that the importation of a slave into Mississippi, where his sale, when so brought, is forbidden, cannot be prohibited. The distinction is not to be sustained. Commerce is the traffic in articles which are the subjects of traffic, either in the place from which they are brought, or the place to which they are taken, If the place from which they are brought is the test, then is every slave, taken from Virginia to New York, an article of commerce, and any regulation by the latter in regard to him, is a violation of the constitution. If the place into which they are imported, determines their character, then is the privilege of the slave state, in regard to their disposition as matters of commerce, as strictly constitutional and complete as that of the free states. On the principles, then, laid down, in the case of Gibbons v. Ogden, this is clearly a matter of commerce, depending on the state laws, affecting the state laws, and not necessary for any of the purposes of the general government.
But it is said, that being an importation of an article, it necessarily presumes intercourse, which is commerce. To that it is answered, that mere intercourse, even between different states, is not commerce; it must be intercourse connected with, or auxiliary to trade. Such is the evident meaning of the court, in the case of Brown v. State of Maryland. But here, this necessary ingredient is prohibited; the article cannot be sold. There is, therefore, no object upon which commercial regulation can act.
In the only remaining case where this constitutional clause was discussed, New York v. Miln, 11 Pet. 135, is there a word found which sustains the idea that this power authorized congress to interfere with the traffic in slaves among the states, or the regulation in regard to it? The reverse! That case most ably examines the decisions of Gibbons v. Ogden, and Brown v. State of Maryland. It shows, that the former extended only to the regulation of navigation, under an act of congress, as a branch of commerce; the latter involved the right of the state to interfere, by a tax, with the taxing power of congress. But further than this, it (11 Pet. 136) sustains the very position now submitted; that the regulation of commerce is intended to apply to 'goods,' to the articles that are strictly merchandize.
Take, then, the construction given by this clause, and it is evident, that congress cannot make commercial regulations about anything that is not in itself commercial property, and so recognized by the state. Now, the state of Mississippi does not recognise these as property, subject to sale-subject to commerce when thus imported. It seems, it does not recognise them as such property at all; they are at the disposition of the legislature, under the act of 1822; but at all events, they are not property liable to commercial traffic, when so introduced. In the case of the State of Mississippi v. Jones, Walk. 83, the law of that state was established clearly, that they were the creatures only of positive law, not property by any other right.
II. But suppose, that slaves are to be so regarded, still, as a regulation in regard to property brought into the state, these prohibitory enactments are authorized. This court, in the cases of Gibbons v. Ogden, and Brown v. State of Maryland, had laid down the rule, that a state might do whatever was necessary to protect itself internally; its quarantine, police, pilot laws, &c., all relating to and connected with navigation and commerce. But in the case of New York v. Miln, 11 Pet. 139, this principle was more broadly and fully enunciated. After declaring, that the authority of a state is 'complete, unqualified and conclusive,' in relation to those powers which refer to merely municipal legislation, the court observe, that 'every law comes within this description, which concerns the welfare of the whole people of a state, or any individual within it; whether it relates to their rights or their duties; whether it respects them as men, or as citizens of the state.' This view clearly embraces the present case. The evils against which the people of Mississippi desired to protect themselves, have been fully pointed out. Their determination to stop the introduction of slaves, without corresponding emigration; to guard against the admission of the vicious, through the deceptions of negro-traders, were evidently objects of proper municipal regulation, equally concerning the welfare of the whole people of the state, and that of many an individual within it.
III. But suppose this to be a commercial regulation; not of the class above referred to, but one which congress might make; still, is the power of congress exclusive or concurrent? It is not means to contest the general principle assumed by the counsel of the defendant, that in matters clearly within the scope of those powers and duties pertaining to the general government, it is exclusive; but is this such a case? In matters which are legitimate objects of legislation by the states, they may exercise a power as well as the general government. Each may levy taxes; each may regulate passengers coming in foreign vessels; each may improve navigable streams. Are not the powers now claimed by the state of Mississippi of this class? Even if we admit congress might regulate them, could not that state also do so? And if not, to what serious evils might it lead! Congress has never yet acted on the subject; yet who can deny, that it is a subject that must have been acted on? It is submitted, therefore, on all these grounds, that this is not a regulation of 'commerce among the states,' according to the meaning of the constitution; but if it is, it is one that the states themselves have also a right to make.
Nor should we forget, that this is the settled construction given from the earliest days of the government, by congress, by the states, and by the courts of the United States and the states. Congress, when it admitted the states of Alabama, Illinois, Missouri, Arkansas, as well as Mississippi, approved of constitutions having similar provisions in them. In nearly every state of the Union, laws of the same character have been enacted, without hesitation, even from the days of the revolution. They exist in the free states, as well as the slave states; for the principle is the same. If the right of forbid importation for sale does not exist, how can it be exercised in a free state more than in a slave state? The decisions of courts of the United States and of numerous states of the Union, recognising the validity of laws which depend on this principle, have been already referred to so fully, that it is unnecessary to dwell further upon them. Now, it is respectfully asked, can this court undertake, for the first time, to give a construction to the constitution which will set at naught these constitutional provisions of the states, these laws, and this uninterrupted series of judgments of judicial tribunals? Yet it is in vain to disguise it, that this must be the effect of a decision in favor of the defendant on this point of the case. It would, indeed, be, as was said, to sacrifice a hecatomb of laws. And for what purpose-what good? Have not these regulations been safe, just and prudent? Are they not conformed to the feelings, opinions and laws of the several states, whether permitting or prohibiting slavery? Would these be better suited by what congress would do? On the contrary, would not an attempt on the part of congress, now, for the first time, after a lapse of fifty years, exclusively to do that which the states have always done themselves, strike a blow at the laws and institutions of the states? Would the free states readily submit; or would slave states? If such fate is reserved for the constitutions, laws and judicial decisions of the states; if they are all to be broken down, and a new power of regulation awaits them; who can tell, what may be its effect on the institutions and power of the Union itself?
On all these grounds, therefore, it is submitted, that this prohibitory clause in the constitution of Mississippi is not only clearly expressed, but it is, in itself, a legal and constitutional provision.
The next question is, was the conduct of the plaintiff below intentionally at variance with this provision of the fundamental law? That it was, is evident, when we take the whole transaction together. The sale of the imported negroes formed necessarily a part of the transaction, without which the violation of the law was not complete. It will be seen, that the introduction of slaves into Mississippi, from other states, is not forbidden. They may be brought there by persons coming to the state for a limited period, or intending to remain there permanently. It is only when brought there to be sold, that the constitution is violated. The evidence of this subject-the only violation of the law-is the sale, or the offer to sell. Until that moment, the crime is res infecta, an unaccomplished act: when the slave becomes the subject of a bargain, then it is, that the introduction as merchandize is apparent, and the violation of the law complete. Whether there might not be an act indicating the intention and purpose for which the slaves were introduced, other than the contract for their sale, it is not necessary to discuss; when the sale follows, it forms part of the illegal transaction; characterizes the introduction; shows its improper character; and so taints the whole bargain, that to consummate it through the agency of a court, would, in the language of Chief Justice WILMOT, 'pollute the pure fountain of justice.'

## Notes

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