The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-01-16


Deals of Kentucky, and the case is brought here
BY writ Of error upon that judgment.
= Much Of the argument on the part Of the plain
lifts in error has been offered for the purpose of
showing that the Judgment Of the State court was
erroneous in deciding that these negroes were
slaves. And Il is insisted that their previous en-
plovment 10 Ohio had made them free when they
retl rned to Kentucky.
= But this question is not before US. Every State
has an undoubted right to determine the status or
domestic and social condition of the persons dom-
ciled within its territory except in 80 far as the
powers of the State in this respect are restrained
or duties and obligations imposed upon them by
the Constitution Of the United States. There is
nothing in the Constitution of the United States
that can in any degree control the law of Ken
lucky upon this subject. And the condition of the
negroes, therefore, as TO freedom or slavery after
their return, depended altogether upon the laws
of that State and could not be influenced by the
laws of Ohio II was exclusively in the power of
Kentucky to determine for itself whether their
employment in another State should or should
not make them free on their return. The court
of appeals have determined that by the laws of
the State they continued to be slaves And their
Judgment upon this point is, upon this writ of
error, conclusive upon this Court, and we have no
jurisdiction over It,
that the law of Ohio, upon this subject, has some
peculiar force, by virtue Of the Ordinance of
1887, for the Government of the northwestern
territory-Obio being one of the States carved
out of it.
One Of the articles of this Ordinance provides
that there shall be neither slavery nor involun-
tary servitude in the said territory, otherwise
than in punishment for crimes whereof the party
shall have been duly convicted but that any per-
son escaping into the same, from whom labor SER
vice is lawfully claimed in any one Of the original
States, such fugitive may be lawfully reclaimed
and conveyed to the person claiming his or her
labor or service as aforesaid And this article is
one Of the six which the Ordinance declares shall
be compact between the original States and the
people and States in the said territory, and for
ever remain unalterable, unless by common con-
sent.
The argument assumes that the six articles
which that Ordinance declares TO be perpetual
are still in force in the States since formed
within the territory and admitted into the Union.
If this proposition could be maintained, il would
not alter the question. For the regulations of
Congress under the old Confederation or the pres
ent Constitution, for the Government of parti-
culsr territory could have no force beyond its linn
its. 1t certainly could not restrict the power Of
the States within their respective territories nor
nor give this Court any control over
them The Ordinance in question, If stiff in force,
could have no more operation than the laws Of
Ohio in the State of Kentucky. and could not in
Ruence the decision upon the rights IS ihe master
or the slaves in that State nor give this court
jurisdiction upon the subject.
But ii has been settled by judicial decision in
this Court that this Ordinance is not in force
The caae of Permoi u.s. First Municipality,
3 How, $50, depended upon the same principles
with the case before US. 1t is true that the ques
tion in that case arose in Louisiana. But the act
Of Congress Of April 7, 1898, chap 2S, IA Stat at
Large, 549J extended the Ordinance of 1857 to
the then Territory of Mississippi, with the ex-
ception of the anti-slavery clause, and declared
that the people of that Territory should be ent-
tied to and enjoy all the rights, privileges, and
advantages granted to the people of the territory
of the Ohio. And by the act Of March
2, 1905, chap. 80, e Stat at Large 1922 it was en-
acted that the inhabitants Of the then Territory
of New Orleans should be entitled to and enjoy
all the rights privileges, and advantages secured
by the Ordinance of 1887, and at that time enjoy
ed by the people Of the Mississippi Territory.
In the case above mentioned, Permoli claimed
the protection of the clause in one of the six ar
tcles which provides for the freedom of religion,
alleging that it had been violated by the First
Municipality. And he brought the question be-
fore this Court upon the ground that it had juris-
diction under the Ordinance. But the Court
held that the Ordinance ceased to be in force when
Louisiana became State, and dismissed the case
for want of Jurisdiction. This opinion is indeed
confined to the territory in which the case arose.
But it is evident that the Ordinance cannot be in
force in the States formed in the northwestern
territory-and at the same time not in force in
the States formed in the southwestern territory,
to which it was extended by the present Govern
ment. For the ordinances and pledges Of the
Congress OF the old Confederation cannot be more
enduring and obligatory than those Of the new
Government nor can there be any reason for
giving different Interpretation to the same words
used in similar instruments, because the one is by
the old Confederation and the other by the present
Government And when it is decided that this
Ordinance is not in force in Louisiana, it follows
that it cannot be in force in Ohio
But the whole question upon the Ordinance of
1857, and the acts of Congress extending it to
other territory afterwards cQuired, was carefully
considered in Pollard vs. Iiagan, 3 How, 2l2 The
subject is fully examined in the opinion pro.
nounced in that case, with which we concur and
il is sufficient now to refer to the reasoning and
principles by which that judgment is maintained,
without entering again upon full examination of
the question.
Indeed, it is impossible to look at the six ar
ticles which are supposed in the argument to be
still in force, without seeing at once that many of
the provisions contained in them are inconsistent
with the present Constitution And, IL they
could be regarded as yet in operation in the
States formed within the limits Of the northwest
ern territory, it would place them in an inferior
condition as compared with the other States, and
subject their domestic institutions and municipal
regulations to the constant supervision and control
of this Court. The Constitution was, in the lam
guage of the Ordinance, "adopted by common
consent" and the people Of the Territories must
necessarily be regarded parties TO it, and bound
by it, and entitled to its benefits as well the peo
pie of the then existing States. IL became the su-
preme law throughout the United States And, SO
far as any obligations of good faith had been pre-
viously incurred by the Ordinance, they were
carried into execution by the power and
authority of the new Government
In fact, when the Constitution was adopted, the
Of that vast territory was hardly be-
gun and the people who filed il, and formed the
great and populous States that now cover it, be-
came inhabitants or the territory after the Con-
sttution was adopted and mig -ated upon the faith
that its protection and benefits would be extended
to them, and that they would Ia due time, accord
ing to its provisions and spirit be admitted into
the Union upon an equal footing with the old
States For the new Government secured to them
all the public rights Of navigation and commerce
which the Ordinance did OF could provide for
and, moreover, extended to them, when they
should become States, much greater power over
their municipal regulations and domestic concerns
than tho Confederation had sgrted to concede.
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