The national era. [volume] (Washington [D.C.]) 1847-1860, 1857-04-02

not deem it necessary in this case to determine
the question of the technical domicil of DIR.
| Emerson.
1t must be admitted that the inquiry whether
the law of particular country has rightfully
fixed the status of a person, so that in accord
ance with the principles of international law
that status should be recognised in other juris.
dictions, ordinarily depends on the question
whether the person was domiciled in the country
whose laws are asserted to have fixed his status.
But, in the United States, questions of this kind
may arise, where an attempt to decide solely
with reference to technical domicil, tested by
the rules which are applicable to changes of
| places of abode from one country to another,
would not be CONSTANT with sound principles.
And, in my judgment this is one of those
| cases.
The residence of the plaintiff, who was taken
by his master, DIR. Emerson, as slave, from
Missouri to the State of Illinois, and thence to
| the Territory of Wisconsin, must be deemed to
have been for the time being, and until he as
serted his own separate intention, the same as
the residence of his master; and the inquiry,
whether the personal status of the Territory
were rightfully extended over the plaintiff, and
ought, in accordance with the rules of interna-
tional law, to be allowed to for his status, ust
! depend upon the circumstances under which
DR.. Emerson went into that Territory, and re-
NAMED there, and upon the further question
whether anything was there rightfully done by
the plaintiff to cause those personal statutes to
operate on him.
| DR.. Emerson was an officer in the army of
the United States. He went into the Territory
to discharge his duty to the United States. The
place was out of the jurisdiction of any particu-
lar State, and within the exclusive jurisdiction
OF the United States. 1t does not appear where
| the domicil of origin of DR.. Emerson was, nor
whether or not he had lost it and gained an
other domici nor of what particular State, if
any, he was citizen.
On what ground can it be denied that all
valid laws of the United States, constitution
ally enacted by Congress for the Government
of the Territory, rightfully extended over an
officer of the United States and his servant, who
went into the territory to remain there for an
indefinite length of time, to take part in its civil
| or military affairs? They we're not foreigners,
coming from abroad. Doctor Emerson was a
citizen of the country which had exclusive
| jurisdiction over the Territory; and not only q
! citizen, but he went there in public capacity,
in the service of the same sovereignty which
made the laws. Whatever those laws might be.
whether of the kind denominated personal
statutes, or not, so far as they were intended by
the legislative will, constitutionally expressed,
to operate on him and his servant. and on the
relations between them, they had rightful
operation, and no other State or country can
| refuse to allow that those laws might rightfully
operate on the plaintiff and his servant because
such refusal would be denial that the Uni
ted States could, by laws constitutionally en-.
| acted, govern their own servants, residing on
their own territory, over which the United
States had the exclusive control, and in respect
to which they are an Independent sovereign
power. Whether the laws now in question were
| constitutionally enacted, l repeat once more,
is a separate question. But, assuming that
| they were, and that they operated directly on
the status Of the plaintiff, I consider that no
other State or country could question the right
| full power of the United States so to legislate,
or, consistently with the settled rules of inter-
| national law, could refuse to recognise the
| effects of such legislation upon the status of
their officers and servants as valid everywhere.
This alone would, in my apprehension, be
sufficient to decide this question.
| But there are other facts stated on the rec
ord, which should not be passed over 1t is
| agreed that, in the year 1886, the plaintiff,
while residing in the Territory, was married,
with the consent of Doctor Emerson, to Harriet,
| named in declaration as his wife, and that
|
marriage, the first named having been born on
the Mississippi river north of the line of Mis-
souri,, and the other having been born after their
return to Missouri. And the inquiry is, whether,
after the marriage of the plaintiff in the Terri.
tory, with the consent of Doctor Emerson, any
other State or country can, consistently with
| the settled rules of international law, refuse
to recognise and treat him as free man, when
suing for the liberty of himself, his wife, and
the children of that marriage. 1t is in refer.
ence to his status, as viewed in other States and
| countries, that the contract of marriage and the
birth of children become strictly material. AT
the same time, it is proper to observe that the
female to whom he was married having been
taken to the same military post of Fort Smelling
as slave, and Doctor Emerson claiming also
to be her master at the time of her marriage
her status, and that of the children of the mar.
riage, are also affected by the same considera.
| tons.
| Ii the laws OF Congress governing the Terri
| tory of Wisconsin were constitutional and valid
laws, there can be no doubt these parties were
capable of contracting lawful marriage, at.
tended with all the usual civil rights and obi.
cations of that condition. In that Territory thew
were absolutely free persons, having full capa.
city to enter into the civil contract of marriage
1t is principle of international law, settled
beyond controversy in England and America,
that a marriage, valid by the law of the place
where it was contracted, and not in fraud of the
law of any other place, is valid everywhere; and
that no technical domicil at the place of the
contract is necessary to make it so. (See
Bishop on Mar. and Div, 1853, where the cases
are colected.)
If, in Missouri, the plaintiff were held to be
a slave, the validity and operation of his con
tract of marriage must be denied. He can
have no legal rights of course, not those of q
husband and father. And the same il trae O.
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 nc
longer husband and wife; and a child of tina,
lawful marriage, though born under the same
dominion where its parents contracted lawful
marriage, is not the fruit of that marriage. nor
the child of its father, but subject to the maxim
partus sequitur ventrem.
|! 1t must be borne in mind that in this case
there is no ground for the inquiry, whether il
be the will of the State of Missouri not to rec
ognise the validity of the marriage of fupi
tive slave, who escaped into a State or country
where Slavery is not allowed, and there contracts
a marriage; or the validity of such marriage
where the master, being citizen of the State
of Missouri, voluntarily goes with his slave
az itinere, into State or country which doe!
not permit Slavery to exist, and the slave there
contracts marriage without the consent of his
master. For, in this case, it is agreed, Docto,
Emerson did consent. And no further question
can arise concerning his rights, 30 far as their
assertion is inconsistent with the validity of the
marriage. Nor do know of any ground 70,
the assertion that this marriage was in fraud O
any law of Missouri. 1t has been held by thi,
court, that a bequest of property by master
to his slave, by necessary Implication entitle,