Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 35

In Scott, Justice Wayne concurred with Taney but tried to address the overreach on the Missouri Compromise. A writ of error from the state supreme court would trigger a check for jurisdiction. If not, SCOTUS returns the case to state court without further ado. Writs from the circuit courts follow different rules than in common law. If the writ is from a circuit court, SCOTUS reviews it to see if the lower court has jurisdiction. Averments made by the plaintiff that prove inaccurate should result in SCOTUS returning the case to circuit court even though it has decided the case on its merits. The court reviews the record on which the lower court determined merits if the plaintiff files an abatement on his status as a free man, the defendant objects, and then both plaintiff and defendant demur. The lower court erroneously sustained the plaintiff’s demurrer or declared the plea insufficient, requiring the defendant to answer on the merits. SCOTUS may correct the record as well as inquire into the lower court’s jurisdiction, because the law does not limit it from doing so. If the circuit courts followed common law, where the defendant has denied the plea, it would limit SCOTUS’s review of those judgments.

Justice Nelson wanted to recognize the decision of the lower court and affirm it. That meant that, while concurring in the result that Scott and family remained slaves, Nelson did not sign on to Taney’s reasoning. Nelson explained that, upon judgment of the plea on demurrer and the defendant answers, the defendant submitted to the court judgment on that matter and proceeded to plea the merits. The plea in abatement was no longer part of the record. Other assertions claimed a difference between federal and common law on this point.

Justice Johnson proceeded to the merits of the case. Does residence in a free state work an emancipation? Both the Missouri high court and the circuit court found that it did not. Doing so would allow the state of temporary residence to impress upon a person’s status a quality taken with him back to the state of origin. Reverse this: if a freeman temporarily resided in a slave state, would it impress the badge of slavery sufficiently permanent to weather border crossing into a free state? States legislate within their own territories; each are sovereign in their own territories and toward one another. The source state must determine whether it would honor a change of status made in another state. It may accept a law of another state as a matter of comity, but there is no obligation to do so and it cannot do so if it is prejudicial to its own state laws.

Johnson argued that Congress could have no more authority outside the state than could a state outside its own. In any event, Congress had no power to determine which states are free or slave, so it is clear it had no such power in territories. Besides, were Congress to have the power to abolish slavery in the territories, it also would have the power to establish slavery. Justice Grier agreed with Johnson and with Taney on the Missouri Compromise.

Johnson’s use of “impress a status upon” a slave or descendant was a direct contradiction with the conception of slaves as forever property. Status crimes were not because the act or intention was a crime or an action, but because of some transitory characteristic of the actor. Underage drinking is one example. Youth, like so many other human characteristics, passes with time. The same drinking act is illegal or legal, depending upon age. Old law defined a vagrant as someone without visible means of support. If the law impresses a status, the law may change that status. If one state law can impress the badge of slavery, another can remove it. Now we are back to Taney’s conundrum. Does the national government honor the status impressed by some states but removed by others? If the badge of slavery is a convention, not a condemnation of nature, it is not a necessary component of citizenship, since both require positive actions of government absent a Constitutional designation. The slave states make a positive law judgment; the free states make another. Power governs the balance in a multisovereignty system.

Justice Daniels also concurred but felt that the range of issues covered in the Scott decision were either directly or implicitly in Scott’s argument. Daniels agreed with Taney that the state court procedures differed from federal procedures, and the latter may look at the abatement, demurrers, and their judicial determination below. For a slave there is neither civil nor political relation; he is property. Slavery is not one of the properties associated with the word citizen. Manumission cannot, and has not, mystically created the qualities needed for citizenship. Only sovereignty can change or abolish a deep social distinction like master and slave, not small individual or state efforts aimed at mischief and ruin. The powers of naturalization limit conversion to US citizenship to free white aliens. The Founding Fathers also did not confuse citizenship with residence; the latter does not imply the former.

Justice Daniels wanted to put the issue of slaves or their descendants becoming citizens to final rest. The two simple questions were whether the Constitution of Illinois could instill the quality of freedom on a slave in temporary residence; whether Congressionally designated free territories might do the same? In the first question, an asserted authority, without foundation in law in the nation or in the state of domicile, forced the owner to relinquish property guaranteed to him through the Constitution. Claiming some international law trumps national laws on slavery is patently false. A sovereign is sovereign. Even if the Missouri Compromise were legal, the territory still could not bestow a condition denied by the state of domicile. Congress was not free to bestow upon a portion of the country the right of confiscation. Further, the Congressional legislation authoring the Missouri Compromise referred to the territories as property, over which Congress had a proprietary interest. Attempting to establish a free zone above the 36th parallel violated the terms of the trust and created a citizenry where one part is privileged at the expense of another.

Remember, Daniels concluded, that the central government exercised land purchases in the name of the people, by the combined effort of the states, and the resources of the entire nation. It would make no sense to put conditions that disadvantage one large sector of the citizens and states that made it possible. The Founding Fathers rejected the idea that the original states could impose conditions observable as a condition for entry. Doing so truncated the freedoms available to the citizens of a state by its date of entry. Under our Constitution, all citizens share the same privileges, rights, and obligations. The circuit court’s decision was correct, but it erred in sustaining the demurrer to the plea in abatement.

Justice Campbell concurred but added a separate opinion. Campbell chose not to pursue the lower court jurisdiction issue. Scott lived under the laws of Missouri, left its jurisdiction under the laws of Missouri, and despite the length and place of sojourn in Illinois and Minnesota, returned to the umbrella of the laws of Missouri. Campbell argued that justification for the trespass complaint depended upon the rule where the act occurred and is the judicial rule used by the trial court. Scott sued in the courts of Missouri which recognized slavery, provided guarantees to the master, and invited immigrants to bring in slaves as property with the promise of protection. Neither running away nor removal by a master effected manumission on return to Missouri. Emancipation still required public agency involvement. The domicile laws where someone is born determined the civil and political capacity. Campbell argued that some laws recognized a change in status with a change in domicile. Here, the status arises from the social and political arrangements of the state and each sovereignty determines that status. In the instant case, the slaves moved with their master’s transfer, and hence there is no permanent change of domicile, per se. There was no evidence that Scott ever permanently abandoned the Missouri domicile.

Foreign law cannot dissolve relations legally contracted in the original domicile. The plaintiff in this case argued that residence under a free policy regime imparted that status to the slave, even if residence was temporary. International law recognized slavery, so the authorities of one state cannot interfere with rights granted under a different state. Campbell cited the changes in law governing Europe by the Charlemagne capitularies. Charlemagne attempted to build an imperial empire while governing regionally. The old slave law allowed recovery within a set number of years, typically three. Charlemagne allowed recovery of slaves in Italy, without time limit, but the ancient laws would govern return to the Lombards and Romans. George Washington asked the British to stop transporting slave property through New York in 1783. In 1788, the US minister to Spain asked for an order to governors of Louisiana and Florida to facilitate recovery of fugitive slaves. International law recognized that a change of place did not effect a change of condition. The weakening of these international protocols eventually allowed recognition of privileged communities, or what we today call sanctuary cities. Residence in these privileged communities reduced the amount of time of slave reclamation to as little as a year and a day before perpetual liberty. In some cases, such as the French royal decree against a Spanish ambassador who brought a slave with him into France, a slave became frank and free when crossing the border. Ancient practice in Toulouse also set free slaves brought into the city by voyagers from afar. These practices were known in English and French courts by the early eighteenth century. Kings of France had confirmed from the fourteenth century that they exempted inhabitants of Paris from feudal and serf incapacities.

The claim that these cities were asylums of liberty were glosses added long after the fact. Economic reasons and the control of traders were paramount. The cities needed labor and population replacement from outside their borders. The dramatic expansion of trade between Europe and much of the ancient world fostered local controls over the economic power and presence of traders in the burgeoning routes of exchange. English courts confronted American slavery in the late eighteenth century, arguing that only positive law could justify such a practice. Mere residence for a time in England did not alter the master/slave relation in the New World. English law did not govern the New World courts, and New World law did not govern the English courts. The same applies to the courts of Missouri, on the one hand, and those of Illinois and Minnesota, on the other. The federal government had no power over slavery except fugitive slaves and hence could not prejudice the claims of any state. Setting up the territorial governments was one matter; setting their policies was another. Such a distinction limited the statutory power of England over internal colonial policy.

The great political question was not the independence of each colony, but their relation to the unincorporated Western lands. In one model, each colony had control of its contiguous lands. In another model, the one finally adopted, each colony would transfer all these lands to the central administration. Each territory, assisted by the central government and temporarily appointed ministers, would apply for statehood, and each would assume the same policy control as that exercised by the existing states over their internal affairs, save that none of the new states could engage in foreign slave trade. In all other respects, rightful power required sanction of the legislature and ratification by the people. Each new state made its decision on the institution of slavery; this should not, paralleling the British Parliament over the colonies, be a condition imposed by Congress. Campbell felt that the 9th and 10th Amendments served as explicit limits on the irresponsible use of supreme power, such as that now exercised over our boundless territory. When the United States sold parcels of its extensive territories, it did not reserve those property rights to itself, and it sold to people who already had rights under the US Constitution.

Campbell argued that limits on the central government need not be a Constitutional prohibition and, conversely, the states and the people may extend laws beyond their enumerated powers. Congressional power over the territories through rules and regulations ended when the territory became a state. The rules and regulations should focus only on those needed to conserve the territory and prepare it for land sales and eventually statehood. The territories must observe national obligations such as taxation, war and peace, commerce including abolishing slavery, copyrights and inventions, and criminal justice. SCOTUS cannot decide the political question of the division of these powers between the national and territorial governments. Local protections of life, liberty, and property are beyond the control of Congress. This included the definition of property. Congress could not interfere with the internal migration of slaves across territories and states; this depended on the rights of the master.

Campbell looked closely at the Missouri Compromise and the Constitutional provision allowing Congress to dispose of the public domain or to organize it for government. Nothing gave authority over the master-slave relation. It is an error to assume that the federal government can do anything not prohibited by the Constitution. The 10th Amendment takes care of that, were there any previous doubt. There was no authority or justification for a big national government controlling the police powers of the territories. The Constitution put a time limit on the importation of slaves; the Georgia legislature did not. Georgia and North Carolina ceded lands to the central government after adoption of the Constitution. Neither would sign the anti-slavery clause. Both expected temporary governments in these territories to use state laws or to transit to popular institutions. The Louisiana Purchase raised questions of Constitutionality and then concern over the military-type government appointed by the president. Many were concerned with the admission of new states creating a geographic political power for anti-slavery states that would, in turn, send senators to Congress. Court decisions denied municipal-type jurisdiction in the territories and the new states should make their own decisions on slavery.

Congress did not have the direct power to subject persons in these territories to capacities and status that it dictated. Campbell saw the Constitution as a compact among states to establish a national government of limited powers. An effort to admit Missouri as a free state ended with the Missouri Compromise admitting Missouri as a slave state and leaving a geographically divided territory with slave territories to the south and free territories to the north of a meridian line. Campbell took special issue with the construction of the Constitutional grant to Congress: dispose of and make all needful rules and regulations respecting territory. He held that the Founding Fathers wanted this interpreted narrowly. Campbell repeated the judicial restriction that Congress cannot exercise municipal jurisdiction, sovereignty, or eminent domain. The grant of power did not reach to persons or property. The United States sold lands for its citizens empowered with unalienable and inalienable personal and political rights. Constitutional protections were insufficient to protect the territories from the legislative, executive, and state intrusions. Self-government must proceed quickly.

Congress did not have the municipal power to determine slavery or its absence in territories organizing for statehood. Making such a foray penetrated deeply into the social fabric of the entire nation on behalf of a vocal minority. This division introduced confederacies fighting for federal power and fighting one another. This is not a union. Congress had no power to dissolve the master-slave relation. Scott and his family remained slaves. The circuit court jury made the correct decision. Campbell concurred with Taney that the master-slave relation existed before, during, and long after the sojourn to a slave-free state or to northern territories. Campbell also agreed that the circuit court should not have rendered a general judgment but believed the Constitution limits Scott’s ability to sue in federal court. Scott only had his Missouri rights. Campbell wanted to see an affirmation of the judgment for lack of jurisdiction or just reverse and remand to dismiss the suit.