Читать книгу Justice Rehnquist, the Supreme Court, and the Bill of Rights - Steven T. Seitz - Страница 36

Justice Catron objected to SCOTUS opening the plea in abatement made to the circuit court. Those demurrers were not open to review by a writ of error. Catron concluded that there is no error in law and that the lower court decision is correct and proper. The court should not have used the plaintiff’s plea in demurrer against him. Illinois law did not in fact provide Scott any relief; only if the master became a permanent citizen of that state were his slaves set free. Scott’s second claim derived from time spent in free territories. Catron did believe Congress had the power to forbid slavery in territory above the 36th meridian. The United States had the right to purchase or otherwise acquire territory not ceded by the original 13 states. The powers exercised by the king at the beginning of the possession chain passed to each subsequent possessor and finally to the United States. The ordinance of 1789 explicitly extended these powers to the new government. Congress gave the president, with the advice and consent of the Senate, the power to appoint governors or commissioners for these territories while they were preparing for statehood. Congress had exercised that power for 60 years, and it was too late to call it back now. While under its control, Virginia banned slavery in its western territory, and the United States inherited that provision. The state could decide otherwise when admitted, but not before. North Carolina cession had the provision that Congress would not emancipate the slaves. Georgia excepted to a provision barring slavery. The Louisiana Purchase contained the right to own slaves. These grants and purchases were treaties, the terms of which the United States must observe. Catron denied Congress the right to abrogate terms of the 1803 treaty with France, passing a vast amount of land into US possession.

Catron emphasized the importance of the equality of the states. A citizen of any state moving into the territories had the privileges and immunities carried from their home state, so citizens of each state had equal right to enjoy the territories. Catron observed that this meant each person comes there under the umbrella of their home state rights. Thus, the equality derived from the equality of the states, not individuals, per se. If Congress were to exclude slaves from one territory or another, it had the power to exclude all sorts of property. The Constitution and the conditions of cession determined what Congress could do. The Missouri Compromise violated equality of the states in these territories and was void. It provided no shelter for Scott; he was and is a slave.

Justices McLean and Curtis dissented, much to the consternation of some of their colleagues. The dissenters took exception to many of the claims raised in the Taney decision, but two are particularly important. There is no Constitutional basis whatsoever to claim that the Negroid race is inferior to the whites and that the race, descendants from slaves in this country, could never gain citizenship. The only Constitutional reference describes the slaves and their descendants as persons. Person is one of two words used in various sections of the Constitution and Bill of Rights: persons and citizens. All persons, for example, have the right of habeas corpus. Second, there is no Constitutional basis for assuming that the provisions giving Congress authority over territories applied only to those territories surrendered by the states around adoption of the Constitution. Taney must make both claims to uphold his approach to the decision; the dissenters sharply criticized both assumptions.

In the circuit court, Sanford’s answer to Scott’s plea was that the alleged trespass (personal injury by force) happened outside the jurisdiction of federal court and within the jurisdiction of the courts of Missouri. Sanford argued that Scott was not a citizen of Missouri, being of pure African descent and brought into this country and sold as a slave. The defendant filed a plea of demurrer against the plea in abatement and the plaintiff joined that plea in demurrer, which the court sustained. Arguing that the plaintiff is a person of African descent does not establish that plaintiff lacked citizenship and hence negated the right to sue. For the court to honor the defendant, it must assume that the plaintiff is a slave, which of course would be decisive on the merits. No known rule of pleading permits this. Only Congress has the right of naturalization. Under treaties with Mexico, and the admission of Louisiana and Florida, the peoples of these locations became citizens without naturalization.

Several points of law are in order. Slavery exists only within the territory where established; a master cannot reclaim a fugitive slave without express stipulation. Slavery is a mere matter of municipal legislation. Nothing can support it but positive law. The Constitution refers to slaves as persons and in no other respect. Slavery can only exist as a municipal relation; thus, slavery exists only under the authority of law. Without the fugitive slave law, runaway slaves would be free in anti-slave municipalities. If there be a claim to property, that too is a municipal law. When the master brings a slave into free territory, the municipal law binding master-slave dissolves. Ownership of a slave in Missouri, does not translate to slave ownership in a free state or territory. The laws of one state cannot replace those of another. If one state be slave and another free the voluntary movement of the master from one to the other does not carry with it the continued relation of master-slave. Return to the source state does not reestablish the old master-slave relation.

A turn in court decision to recognize the master-slave relation after dissolution in another jurisdiction, aimed at anti-slavery agitation, is not a legislative decision, and the latter cannot decide in one state what holds in others. Interstate relations pattern after international law which summarizes what a civilized society would do. International law would not countenance such decision-making. Common law, such as operates in Missouri, would similarly stand against such judicial decision-making. When states maintain their sovereignty, their laws are not open to control by a bordering state. Similarly, the courts of one state have, until recently, recognized the applicable laws of other states in decision-making. If Missouri permits slavery but another state grants freedom by breaking the bond upon entry, Missouri would recognize the change made by another’s law. Now Missouri wishes to ignore or remain judicially blind to every condition to which the master-slave relation has exposed itself between leaving Missouri, and after some time, returning to Missouri. Most state courts have not done this until the recent agitation.

Justice Curtis focused first on the jurisdiction of the circuit court. The Judiciary Act of 1789 provided that there will be no reversal by SCOTUS on a writ of error for any ruling in a plea of abatement other than to the jurisdiction of the court. If SCOTUS found an error in jurisdiction, SCOTUS returns the case for dismissal. On a writ of error, the whole record is open for inspection and, if an error is found, judgment reversed. The general practice of pleading in abatement is that it focusses upon the facts, not something offered as evidence. Pleadings should not be argumentative. The defendant in this case did not offer a general traverse of Scott’s citizenship argument, but a related claim that Scott was of African ancestry. The court correctly found that insufficient. In the transition from the Articles of Confederation to the Constitution, citizens of the several states became citizens of the United States. This meant that, at transition, African descendants were US citizens because they held state citizenship in several different states.

When the defendant made an insufficient claim against Scott’s citizenship, he had to answer the complaint on the merits. The losing party may have the matter reviewed in the appellate court if the matter at issue involves more than $2,000. If the plaintiff loses the jurisdiction appeal, he may appeal immediately. If the defendant loses, he must wait for final judgment before appeal. The appeal may not be on a matter already favorable to the appellant. Examining jurisdiction of the lower court is the first order of business for the appellate court. To argue, for example, that one’s parents were slaves in no way proves that the descendants of those parents are slaves. The evidence is insufficient to support the claim.

Curtis made a set of assumptions portending 14th Amendment provisions but by no means accepted by all his fellow justices at the time. A citizen of the United States residing in any state is a citizen of the state of residence. Curtis concluded that, if an African can be a citizen of the United States, he is a citizen of Missouri unless explicitly controverted by Missouri law. The often-heard alternative is that there are dual citizenships, one in state and one in nation and citizenship in one does not imply citizenship in the other. Under the Articles of Confederation, citizens of the states were citizens of the United States. Free, native-born descendants of African slaves could be citizens of New Hampshire, New York, Massachusetts, New Jersey, and North Carolina. With proper qualifications these descendants also had the franchise. The Founding Father’s claim that God created all men equal did not apply to white men alone. The Fourth Article of the Constitution conferred general citizenship on the free inhabitants of the states.

Curtis reviewed the Constitution and found no power enabling Congress to disenfranchise people born in any state and entitled to citizenship by the laws of that state. Curtis concluded that every free person born in a state, who is a citizen of a state by its laws, is also a citizen of the United States. Congress has the Constitutional power to remove the disabilities of foreign birth. This is the only power expressly granted to Congress regarding citizenship. Curtis would leave this power to the states to determine what persons born on their soil have citizenship. Allegiance and citizenship depend on place of birth, not the exercise of the franchise, per se. States typically exclude women from the franchise, for example, but they are still citizens.

Free native-born inhabitants of a state who, under the laws of that state, are citizens are also citizens of the United States. Free colored persons born in and considered a citizen of that state, are citizens of the United States. Every recognized state citizen is a citizen of the United States and has the right to sue in federal court. The nation has the power, should it wish to use it, of Constitutionally naturalizing colored aliens. He objected to the majority’s decision that a person of African descent cannot be a citizen of the United States.

Similarly, the majority lacked the authority to examine the Constitutionality of the Missouri Compromise. The court had simultaneously decided that the case had not established jurisdiction and that it had the power to pass on the Missouri Compromise. Even this court’s majority recognized that their Scott decision transcended the limits of the court’s authority. A suit on the disability of one of the parties comes too late if the sole question is whether there is a diversity suit. The municipal laws of the territories do not recognize slavery. Three options follow. First, transport into the territory dissolves the master/slave relation. Second, the state refuses to help the master control the slave. Third, officials distinguish between temporary stay and permanent or indefinite residence. The laws governing Wisconsin and Michigan do not recognize and positively prohibit the master/slave relation, save fugitive slaves. This law operates directly upon the status of Scott and his family.

Missouri, through comity and without direction to the contrary, should recognize the territorial laws as if international law and follow it, assuming its own statutory laws are not to the contrary. The court knows of no such statutory law. Missouri recognizes English common law, and international law is part of it. Scott’s owner, Emerson, was in the public service of the United States in her territories as a military surgeon. The territorial laws of the United Sates governed Emerson and his slave. Whether the United States had the Constitutional authority to legislate on the master/slave relation is a separate question, but international law assumes that each independent power may legislate on the master/slave relation. Also, a marriage recognized as valid at the place of contract is recognizable the same elsewhere. Domicile is irrelevant; the marriage was at the consent of Dr. Emerson. The marriage itself is an act of manumission. Any Missouri law attempting to annul this marriage contract impairs a contractual obligation, prohibited by the US Constitution. No clause in the Constitution either allows or prohibits slavery in the territories.

Debates at the Constitutional Convention left little doubt that the Founding Fathers expected additional territory after adoption of the Constitution and that the power to govern these territories until ready for statehood lay with Congress and officers appointed by the president. Nothing in the language, history, or subject matter of the Constitutional clause “territory belonging to the United States” restricted its application only to territory owned by the United States at the adoption of the Constitution. The power to make treaties gives the power to acquire territory. The acquisition of the Louisiana territory by treaty, approved by the President and Senate, removed any doubt on this score. As of the date of the Scott decision four distinct acquisitions added territory yielding six states. Justice Marshall pointed out that the Constitution gives the government of the Union the powers of making war and treaties; it has the power of acquiring territory. Curtis added that the Union has the powers to govern those territories. What those laws are, given restrictions in the Constitution on all exercised powers, is a legislative or political question, not a judicial one. The existence of property or the right to dispose of public lands depends on the existence of government.

The court inserted into the Constitution a political consideration that would not permit of judicial interpretation, precisely because it is not in accord with the law. When the Constitution uses the word “all” it is not for the court to insert any exception it may prefer politically. Slavery is against natural right and permitted only by municipal law. The latter may simply take the fruits of slave labor or it may allow the master to take the slave’s life. In law, a statute containing the word forever lasts only so long as the next Congress or Congresses decide to change it. The past, in this sense, cannot bind the future. The United States has sovereignty over the territories it acquired by treaty and, in the same manner, a current Congress can ignore any stipulation, because treaties have the same force as statutes. If we owe something to foreign nations, it is only a matter of comity. The common law governs where statute does not exist, but as before, Congress may replace the common law with a statutory enactment as it deems necessary. Only the rights specified in the Constitution and its amendments extend beyond the life of any Congress, because these rights derive their authority from supermajorities required for ratification.

It is difficult to discern any Constitutional basis for the Taney decisions. He used Sanford’s claim that those of African construction were inferior to whites and could never be citizens. He made an extraordinary restrictive interpretation of “territory” to strike down the Missouri Compromise. Had Taney occupied the chair when Marshall was chief justice, the government of the Union would have been little more than another version of the Articles of Confederation. A nation at war with itself overturned the Taney decision, with over 620,000 deaths, as many as most other US wars combined. Not only did the war end slavery everywhere on US soil but it also permanently altered the balance of power between the state governments and the government of the Union. The court had overextended.