The Washington union., 1857-06-02


The defendant pleaded to the jurisdiction of the circuit
court that the plaintiff negro of African blood the
descendant of Africans who had been imported and sold
in this country slaves and thus had no capacity as
citizen OF Missouri to maintain suit In the circuit court
1he court sustained demurrer TO this plea, and trial
had upon the pleas of the general ISSUE and also
that the plaintiff and his family slaves, belonging
to the defendant In this trial verdict given for
the defendant.
The Judgment of the circuit court upon the plea in
abatement opcn in my opinion, TO examination in
this court upon the PLAINTIFF 5 writ
The Judgment given for him conformably TO the
prayer of his demurrer, He cannot assign in
such a Judgment fIidd's Pr, 1863; Williams
saund., 46 IredclI N c., 81 w. and s., 39l J
Nor does the fact that the Judgment given plea
the jurisdiction avoid the application of this rule Gap
Van Noorden, Cr, l26 ; q Wend., 465 Met
59S s Pike lO05)
The declaration dscloses a within the jurisdiction
of the courta controversy between citizens OF different
States. The plea in abatement, impugnng these uris
dctiona averments, waived when the defendant
swered to the declaration by pleas to the merits The
proceedings that plea remain part of the technical
record to show the history of the but not open
to the review Of this court BY writ of error The
thorities very conclusive on this point Shepherd
Graves, IA How, sos Bailey @ Dozer, How 23 1
Stewart, (Aabama,) 46; 10 Ben. Monroe, (Kentucky)
sos; Stewart, (Alabama,) 370 4f3; Scammon, Qlli
nois 49, Nor the court assume, admitted facts,
the avcrments os the plea from the confession of the de-
That confession for single object, and
cannot be used for other purpose than to test the
lidity OF the plea Iompklns Ashley L Moody and
Mackn, 32; 33 Maine, 96 100.
There being nothing in controversy here but the merits
i will proceed to discuss them.
The plaintiff claims to have acquired property in him
SELF and became free by being kept in Illinois during
two years.
The constitution laws and policy of Illinois are some
what peculiar respecting slavery Unless the master be-
nhabitant of that State the slaves he takes
there do not acquire their freedom and they return
with their master to the slave State of his domc they
cannot assert their freedom after their return For the
and authorities this point, refer to the opin
ion Of my brother Nelson with which not only concur
but think his opinion is the most conclusive argument
the subject within my knowledge.
1t is next insisted for the plaintiff that his freedom (and
that of his wife and eldest chd obtained by force
of the act of Congress Of 1920 usually known as the Mis-
souricompromise act which declares Ihat in all that
territory ceded by France to the United States which lies
north of thrtysx degrees thirty minutes north latitude
slavery and involuntary servude shall be- and hereby
Joreper prohibited. !"
From this prohibition the territory now consttu
ting the State of Missouri excepted which excep
tion to the stipulation gave it the designation of
promise
The first question presented this act is whether
Congress had power to make such compromise for if
power wanting then freedom could be acquired
by the defendant under the act.
That Congress has authority to pass laws and bind
mems rights beyond the powers conferred by the const
tuition is not open to controversy But it is insisted
that by the constitution Congress has power egisate
for and govern the Territories of the United States and
Jnat py OF the govern laws could be
acted prohibiting slavery in any portion of the Louisiana
Territory and of course, to abolish slavery all parts
of it, whilst it was is governed Territory.
My opinion is, that Congress is vested with power to
govern the Territories of the United States by force of the
third section of the fourth article of the constitution
And will state my reasons for this opinion
Almost every provision in that instrument has his
tory that must be understood before the brief and
tentios language employed he comprehended in the
relations its authors intended We must bring before
the state of things presented to the convention and in
regard to which it acted when the compound provision
made declaring: LIST. That new States may be adj
mitted by the Congress into this Union" 3D. The
Congress shall have power to dispose Of and make all
needful rules and regulations respecting, the territory
other property belonging to the United States. And
nothing in this constitution shall be so construed
prejudice any claims of the United States any partcu
lar State
Having ascertancd the historical facts giving rise to
these provisions, the difficulty of arriving at the true
meaning of the language employed will be greatly les
sened.
The history of these facts is substantially as follows
The King of Great Britain by his proclamation of 1863
virtually claimed that the country west of the mountains
had been conquered from France and ceded to the Crown
of Great Britain by the treaty Of Paris of that year. and
he says: 'We it under sovereignty, protcc
ton, and dominion, for the use of the Indians
This country conquered from the crown of Great
Britain and surrendered to the United States by the trea
ty of peace of 1888 The colonial charters of Virginia.
North Carolina, and Georgia included it Other States
set pretensons of claim to portions of the terri
tory north of the Ohio, but they of value, as
Suppose Is Wheat, 375.)
As this vacant country had been by the blood and
treasure of all the States those whose charters did
reach it insisted that the country belonged to the States
united and that the lands should be disposed for the
benefit of the whole and to which end the terri
tory should be ceded to the States united The contest
was stringent and angry long before the convention
vened, and deeply agitaed that body AS matter of
justice and to quiet the controversy Virginia consented
to cee the country north of the Ohio early 1888
and in 1854 the deed Of ceson executed by her del
egates in the Congress of the Confederation conveying
the United States in Congress assembled for the benefit
of said States ' right title and claim, well of soil
of jurisdiction which this Commonwealth hath to the
territory tract of country within the limits of the Vr-
gina charter situate lying and being TO the northwest
of the river Ohio. In 1887 July 13 the ordinance was
passed by the old Congress to govern the Territory
Massachusetts, had ceded her pretenson of claim to
western territory in 1855, Connecticut hers in 1856 and
New York had ceded hers In August 1887 South Car
olna ceded to the confederation her pretenson claim
to territory west of that State and North Carolina
expected to cede hers which she did do in April 1890
and Georgia confidently expected to cec her large
domain, constituting the territory Of the States of
Alabama and Mississippi.
At the time the constitution under consideration
there had been ccded to the United States shortly
expected to be ceed all the western country from the
British Canada line to Florida and from the head Of the
Mississippi almost to its mouth except that portion which
now constitutes the State of Kentucky
Although Virginia had conferred on the Congress of
the Confederation power TO govern the territory north of
the Ohio, STILL it cannot be denied as think that pow
wanting to admit State under the Articles
of Confederation
e A.. - Al.