George Ticknor Curtis.

Constitutional history of the United States from their Declaration of Independence to the close of the Civil War online

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or previous condition of servitude.

Section 2. The Congress shall have power to enforce this article by appro-
priate legislation.

United States v. Reese et al., 92 U. S., 214 ; United States v. Cruikshank et al.,
92 U. S., 542 ; Ex parte Yarborough, 110 U. S., 651.

The fifteenth amendment to the Constitution of the United States was pro-
posed to the legislatures of the several States by the Fortieth Congress on the
27th of February, 1869, and was declared, in a proclamation of the Secretary of
State, dated March 30, 1870, to have been ratified by the legislatures of twenty-
nine of the thirty-seven States. The dates of these ratifications (arranged in the
order of their reception at the Department of State) were: from North Carolina,
March 5, 1869 ; West Virginia, March 3, 1869 ; Massachusetts, March 9-12, 1869 ;
Wisconsin, March 9, 186,9; Maine, March 12, 1869; Louisiana, March 5, 1869;
Michigan, March 8, 1869 ; South Carolina, March 16, 1869; Pennsylvania, March
26, 1869; Arkansas, March 30, 1869; Connecticut, May 19, 1869; Florida, June
15, 1869 ; Illinois, March 5, 1869 ; Indiana, May 13-14, 1869 ; New York, March
17-April 14, 1869 (and the legislature of the same State passed a resolution
January 5, 1870, to withdraw its consent to it) ; New Hampshire, July 7, 1869 ;
Nevada, March 1, 1869 ; Vermont, October 21, 1869 ; Virginia, October 8, 1869 ;
Missouri, January 10, 1870; Mississippi, January 15-17, 1870; Ohio, January
27, 1870; Iowa, February 8, 1870; Kansas, January 18-19, 1870; Minnesota,
February 19, 1870; Rhode Island, January 18, 1870; Nebraska, February 17,
1870; Texas, February 18, 1870. The State of Georgia also ratified the amend-
ment February 2, 1870.



APPENDIX. 497



RATIFICATIONS OF THE CONSTITUTION".

The Constitution was adopted by a Convention of the States September 17,
1787, and was subsequently ratified by tbe several States, in the following order,
viz.: Delaware, December 7, 1787 ; Pennsylvania, December 12, 1787 ; New Jer-
sey, December 18, 1787; Georgia, January 2, 1788; Connecticut, January 9, 1788;
Massachusetts, February 6, 1788; Maryland, April 28, 1788; South Carolina, May
23, 1788 ; New Hampshire, June 21, 1788 ; Virginia, June 26, 1788 ; Now York, July
26, 1788; North Carolina, November 21, 1789; Khode Island, May 29, 1790. The
State of Vermont, by convention, ratified the Constitution on the 10th of January,
1791, and was, by an act of Congress of the 18th of February, 1791, " received and
admitted iuto this Union as a new and entire member of the United States of
America."



RATIFICATIONS

OF THE

AMENDMENTS TO THE CONSTITUTION.

The first ten ef the preceding articles of amendment (with two others which
were not ratified by the requisite number of States) were submitted to the several
State Legislatures by a resolution of Congress which passed on the 25th of Sep-
tember, 1789, at the first session of the First Congress, and were ratified by the
Legislatures of the following States : New Jersey, November 20, 1789 ; Maryland,
December 19, 1789; North Carolina, December 22, 1789; South Carolina, January
19, 1790; New Hampshire, January 25, 1790; Delaware, January 28, 1790; Penn-
sylvania, March 10, 1790; New York, March 27, 1790; Rhode Island, June 15,
1790 ; Vermont, November 3, 1791 ; Virginia, December 15, 1791.

The acts of the Legislatures of the States ratifying these amendments were
transmitted by the governors to the President, and by him communicated to Con-
gress. The Legislatures of Massachusetts, Connecticut, and Georgia, do not ap-
pear by the record to have ratified them.

The eleventh article was submitted to the Legislatures of the several States by
a resolution of Congress passed on the 5th of March, 1794, at the first session of
the Third Congress ; and on the 8th of January, 1798, at the second session of the
Fifth Congress, it was declared by the President, in a message to the two Houses
of Congress, to have been adopted by the Legislatures of three-fourths of the
States, there being at that time sixteen States in the Union.

The twelfth article was submitted to the Legislatures of the several States,
there being then seventeen States,, by a' resolution of Congress passed on the 12th
of December, 1803, at the first session of the Eighth Congress ; and was ratified by
IT.— 32



498 CONSTITUTIONAL HISTORY.

the Legislatures of three-fourths of the States, in 1804, according to a proclama-
tion of the Secretary of State dated the 25th of September, 1804.

The thirteenth article was submitted to the Legislatures of the several States,
there being then thirty-sis States, by a resolution of Congress passed on the 1st
of February, 1865, at the second session of the Thirty-eighth Congress, and was
ratified, according to a proclamation of the Secretary of State dated December 18,
1865, by the Legislatures of the following States : Illinois, February 1, 1865 ;
Khode Island, February 2, 1865; Michigan, February 2, 1865; Maryland, Febru-
ary 3, 1865 ; New York, February 3, 1835 ; West Virginia, February 3, 1865 ; Maine,
February 7, 1865; Kansas, February 7, 1865; Massachusetts, February 8, 1865;
Pennsylvania, February 8, 1865; Virginia, February 9, 1865; Ohio, February 10,
1865; Missouri, February 10, 1865 ; Iudiana, February 16, 1865; Nevada, February
16, 1835; Louisiana, February 17, 1865; Minnesota, February 23, 1865; Wiscon-
sin, March 1, 1865; Vermont, March 9, 1865; Tennessee, April 7, 1855; Arkansas,
April 20, 1865; Connecticut, May 5, 1865; New Hampshire, July 1, 1865; South
Carolina, November 13, 1865; Alabama, December 2, 1865; North Caroliua,
December 4, 1865; Georgia, December 9, 1865.

The following States not enumerated in the proclamation of the Secretary of
State also ratified this amendment: Oregon, December 11, 1865; California, De-
cember 20, 1865 ; Florida, December 28, 1855 ; New Jersey, January 23, 1836 ; Iowa,
January 24, 1863 ; Texas, February 18, 1870.

The fourteenth article was submitted to the Legislatures of the several States,
there being then thirty-seven States, by a resolution of Congress passed on the
16th of June, 1866, at the first session of the Thirty-ninth Congress ; and was rati-
fied, according to a proclamation of the Secretary of State dated July 28, 1868, by
the Legislatures of the following States: Connecticut, June 30, 1866; New Hamp-
shire, July 7, 1866; Tennessee, July 19, 1866; New Jersey, September 11, 1866 ; J
Oregon, September 19, 1866 ;° Vermont, November 9, 1866; New York, January
10, 1867 ; Ohio, January 11, 1867 ; a Illinois, January 15, 1867 ; West Virginia, Janu-
ary 16, 1867 ; Kansas, January 18, 1857 ; Maiue, January 19, 1867 ; Nevada, January
22,1867; Missouri, January 28, 1837 ; Indiana, January 29, 1867; Minnesota, Feb-
ruary 1, 1867; Ehode Island, February 7, 1867; Wisconsin, February 13, 1867;
Pennsylvania, February 13, 1867 ; Michigan, February 15, 1867 ; Massachusetts,
March 20, 1867; Nebraska, June 15, 1837; Iowa, April 3, 1868; Arkansas, April 6,
1868; Florida, June 9, 1863; North Carolina, July 4, 1863 ;' Louisiana, July 9,
1868; South Carolina, July 9, 1868; 4 Alabama, July 13, 1868; Georgia, July 21,
1868. 1 The State of Virginia ratified this amendment on the 8th of October,
1869,' subsequent to the date of the proclamation of the Secretary of State. The
States of Delaware, Maryland, Kentucky, and Texas rejected the amendment.

The fifteenth article was submitted to the Legislatures of the several States,
there being then thirty-seven States, by u resolution of Congress passed on the



1 New Jersey withdrew her consent to the ratification in April, 1868.

2 Oregon withdrew her consent to the ratification October 15, 1868.
s Ohio withdrew her consent to the ratification in January, 1868.

4 North Carolina, South Carolina, Georgia^ and. Virginia had previously rejected the
amendment.



APPENDIX. 499

27th of February, 1869, at the first session of the Forty-first Congress ; and was
ratified, according to a proclamation of the Secretary of Sfcato dated March 30,
1870, by the Legislatures of the following States : Nevada, March 1, 1869 ; West
Virginia, March 3, 1869 ; North Carolina, March 5, 1869 ; Louisiana, March 5, 1869 ;
Illiuois, March 5, 1869 ; Michigan, March 8, 1869 ; Wisconsin, March 9, 1869 ; Mas-
sachusetts, March 12, 1869; Maine, March 12, 1869; South Carolina, March 16,
1869 ; Pennsylvania, March 26, 1869 ; Arkansas, March 30, 1869 ; New York, April
14, 1869 ; l Indiana, May 14, 1869; Connecticut, May 19, 1869; Florida, June 15,
1869; New Hampshire, July 7, 1869 ; Virginia, October 8, 1869 ; Vermont, October
21, 1869; Alabama, November 24, 1869; Missouri, January 10, 1870; Mississippi,
January 17, 1870; Rhode Island, January 18, 1870; Kansas, Jauuary 19, 1870;
Ohio, January 27, 1870 ; » Georgia, February 2, 1870 ; Iowa, February 3, 1870 ; Ne-
braska, February 17, 1870 ; Texas, February 19, 1870 ; Minnesota, February 19,
1870. The State of New Jersey ratified this amendment on the 21st of Febru-
ary, 1871, 3 subsequent to the date of the proclamation of the Secretary of State,
The States of California, Delaware, Kentucky, Maryland, Oregon, and Tennessee
rejected this amendment. 4



ARGUMENT OF GEORGE TICKNOR CURTIS, Esq.

In the
Case of Dred Scott, Plaintiff in Error, vs. John F. A. Sanford.

Delivered in the Supreme Court of the United States, December 18, 1856.

[Dred Scott, the plaintiff in error, instituted an action of trespass in the Cir-
cuit Court of the United States for the District of Missouri, describing himself as
a citizen of the state of Missouri, against John F. A. Sanford, described as a citi-
zen of the state of New York, for imprisoning himself (Dred), his wife Harriet,
and his two children, Eliza and Lizzy, as slaves, the action being what is com-
,monly called a suit for freedom. The defendaut filed a plea to the jurisdiction of
the court, alleging that the plaintiff is not a " citizen " of Missouri, because he is
a negro of African descent, his ancestors being of pure African blood, brought into
this country and sold as slaves. The plaintiff demurred to this plea, and the Cir-
cuit Court snstained his demurrer, thereby deciding him to be a " citizen," and
ordered the defeudaut to plead over. The defendant then pleaded over, justify-
ing the alleged trespass on the ground that the persons named in the writ were
his slaves ; and, after issue joined upon these pleas, the parties agreed upon the
following statement of facts :

Iu 1834 Dred Scott was a negro slave belonging to Dr. Emerson, a surgeon in
the army of the United States. In that year Dr. Emerson took the plaintiff from



1 New York withdrew her consent to the ratification January 6, 1870.
5 Ohio had previously rejected the amendment May 4, 1869.
3 New Jersey had previously rejected the amendment.
1 See Analytical Index, p. 609.



500 CONSTITUTIONAL HISTORY.

the state of Missouri to the military post at Rock Island, in the state of Illinois,
and held him there as a slave until 1836. Dr. Emerson then removed the plain-
tiff to the military post at Fort Snelling, in the territory of the United States
north of 36° 30', and north of the state of Missouri, where he held the plaintiff as
a slave until 1838.

In 1835 Harriet, who was the negro slave of Major Taliaferro, an officer of the
army, was taken by her master to Fort Snelling, where she was held as a slave
until 1836, when she was sold to Dr. Emerson, who held her as a slave at Fort
Snelling until 1838. In 1836 the plaintiff and Harriet with the consent of Dr.
Emerson, intermarried at Fort Snelling. Eliza and Lizzy are children of that
marriage. Eliza was horn on hoard a steamboat on the river Mississippi, north of
the north line of the state of Missouri ; Lizzy was horn in the state of Missouri, at
Jefferson Barracks, a military post. In 1838 Dr. Emerson removed the plaintiff
and his wife and children to the state of Missouri, where they have ever since
resided. Before the commencement of this suit Dr. Emerson sold the plaintiff
and his wife and children to the defendant, Sauford, who has ever since claimed
to hold them as slaves.

Upon these facts the jury, under the instruction of the court, returned a ver-
dict for the defendant. The plaintiff then sued out a writ of error to the Supreme
Court of the United States. The cause was argued at the December term, 1855,
and was then ordered by the court to be reargued at the present term upon the
following questions :

1. Whether, after the plaintiff had demurred to the defendant's first plea to
the jurisdiction of the court below, and the court had given judgment on that
demurrer in favor of the plaintiff, and had ordered the defendant to answer
over, and the defendant had submitted to that judgment and pleaded over to the
merits, the appellate court can take notice of the facts admitted on the record by
the demurrer, which were pleaded in bar of the jurisdiction of the court below, so
as to decide whether that court had jurisdiction to hear and determine the cause 1

2. Whether or not, assuming that the appellate court is bound to take notice
of the facts appearing upon the record, the plaintiff is a citizen of the state of
Missouri within the meaning of the eleventh section of the Judiciary Act of 1789?

The latter question involved, among others, the inquiry whether the condition
of the plaintiff was changed from slavery to freedom by residence in the territory
subject to the operation of the restriction coutained in the Act of Congress of 1820,
commonly called tho Missouri Compromise Act. This drew into the case the con-
stitutionality of that act.

Mr. Curtis was retained in the cause, after it was opened by Mr. Blair for the
plaintiff in error, for the purpose of assisting in the argument of this question on
behalf of the plaintiff in error, and the following argnment was made by him in
reply, after the counsel for the defendant in error had closed, and after Mr. Blair
had also replied:]

May it please your Honors, — In rising to speak to the single question on which
I am to address the court in this cause, I may naturally give utterance to the re-
flection that with the political relations of this subject of the power of Congress
over the territories we here have nothing to do. Whether the power to legislate



APPENDIX. 501

on the domestic and social relations of life in a territory, if it exists, ought to be
exercised ; whether it ought to be conferred in its plenitude ou the people of tho
territory or held iu the hands of Congress ; whether it ought to be used for one
purpose or thrown into abeyance for another ; whether it ought to be employed
for or against the supposed interests or wishes of one class of states as distin-
guished from another class, are matters that will never aid anybody in determin-
ing whether the power is to be found in the Constitution. This question, with
whatever aspects it may go elsewhere, with whatever influences or elements it
may be elsewhere surrounded, comes into this pure atmosphere of juridical truth
to be debated and decided as a proposition of constitutional law, bearing upon
the rights of parties to a judicial controversy.. Treating it in no other light, ap-
proaching it for no purpose beyond the little aid I may give to the court in the
decision of the cause, I profess myself able to consider it as a purely juridical
question ; for, may it please the court, I am free to say that if I held the legisla-
tive authority of this government, or any fraction of it, and had satisfied myself,
as I am satisfied, of the existence of this power, I would exercise it or refrain from
exercising it precisely according to what I believed to be the exigencies of tho
particular case; and I would prohibit the relation of master aud slave, or permit
or sanction it, according to the nature of the soil aud climate, the character of
the present or the probable character of the future settlers, and according to
what I might believe to bo for the interests of the particular territory. Acting
upon this principle, I should hope to do something, though that hope might be
vain aud illusive, to eradicate from the public mind those feelings which in one
part of the country lead to a claim of the power in order that it may be exercised
always in one way, and in another part of the country lead to a denial of the
power in order that its exercise in any way be prevented.

But I hold no part of the legislative power of this government, and, by the
blessing of Heaven, shall always be free from that responsibility ; and I feel no
other interest in this question than that which every jurist should feel in the true
construction of the fundamental law of his country. As a jurist, I believe that
Congress has full power to prohibit the introduction of slavery into the territo-
ries of the United States ; as u, citizen, I can conceive of cases in which it
would be unjust to a portion of the Union to exercise that power, and in
which I never would exercise it.

Aud now, in coming to the question on which I am to address the court, I de-
sire to state to the counsel for the defendant iu error (Hon. Eeverdy Johnson and
Hon. H. S. Geyer) that they will hear no references from me to the Constitution
"generally." They have called upon us to point out the provision iu the Consti-
tution which gives this power, aud not to assert it, and then to support the asser-
tion by citing the Constitution passim. Their call shall be answered. I give them
notice that my argument will be confined to the third section of the fourth article,
aud if I do not succeed in satisfying even them that there resides in that section
a legislative power over the territories adequate and competent to all the purposes
for which Congress has ever undertaken to use it, they shall have my free permission
to turn their batteries against those who are in the habit of asserting the power
and referring in support of it to the Constitution "generally." I do not propose
even to debate the question whether a power to legislate on personal rights can



502 CONSTITUTIONAL HISTORY.

be derived, as ail independent power, from the right to acquire territory by pur-
chase or conquest. Whatever may be the value of the suggestion which fell
from the great chief-justice of a former day (C. J. Marshall), in the case of the
American Insurance Company vs. Canter, in 1 Peters (and no suggestion ever fell
from him that was without value), it is certain that he and the court over which
he presided placed the source of the power of territorial government, for the
decision of that case, in the third section of the fourth article of the Constitu-
tion. I may desire hereafter, if the time shall permit, to consider what is the
probable explanation of the language of the chief-justice in that case, and to
state what I understand to be the relations between the right of acquiring terri-
tory and the power of governing it. At present what I wish to say is, that as to
the source of the power to govern a territory, or to organize it into what we call
a territorial community, or to legislate upon any of the relations of its inhab-
itants, whether to this government or inter sese, my argument will be confined
to the third section of the fourth article.

I wish, in the next place, to say, may it please your Honors, what indeed is
obvious to every one — that this is eminently a historical question. But I shall
press that consideration somewhat further than it is generally carried on this
subject, and much further than it has been carried by the counsel for the defend-
ant in error ; for I believe it to be true of this, as it is of almost all questions of
power arising under the Constitution, that when you have once ascertained the
historical facts out of which the particular provision arose, and have placed
those facts in their true historical relations, you have gone far towards deciding
the whole controversy. So true is it that every power and function of this gov-
ernment had its origin in some previously existing facts of the national history,
or in some then existing state of things, that it is impossible to approach one of
these questions as one of mere theory, or to solve it by the aid of any merely
speculative reasoning. Hence it is eminently necessary on all occasions to as-
certain the history of the subject supposed to be involved in a controverted
power of Congress, and, above all, to approach it with the single purpose of
drawing that deduction which the constitutional history of the country clearly
warrants.

The first proposition that I shall maintain, then, is the following :

I. That the last clause of the third section of article four is by no means an
independent provision, standing by itself, and to be construed by itself, as both
the learned counsel have treated it, but that it was placed there with a pur-
pose; that it is intimately connected with the first clause of the same section,
and that it embraces a, provision historically necessary to the exercise of the
power clearly, and unequivocally granted in the first clause. The whole section
is as follows :

" Section 3. New States may be admitted by the Congress into this Union;
but no new State shall be formed or erected within the Jurisdiction of any other
State ; nor any State be formed by the Junction of two or more States, or Parts of
States, without the Consent of the Legislatures of the States concerned as well as
of the Congress.

" The Congress shall have Power to dispose of and make all needful Rules and
Eegulatious respecting the Territory or other Property belonging to the United



APPENDIX. 503

States ; aud nothing in this Constitution shall be so construed as to Prejudice
any Claims of the United States, or of any particular State."

Now, if there is anything certain with respect to the Constitution, it is that
these two subjects are not placed there by au accidental coincidence. They are
not there in the mere accident of juxtaposition. They were placed there with n
purpose, which it is my duty now to show. Not to stand here aud relate notori-
ous facts, but in the briefest possible order in which I can place them, I desire to
refer to those great historical events which surronud the origin of these pro-
visions.

We know, then, that the vast domains included within the indefinite and un-
settled boundaries of some of the larger states formed the chief aud almost the
only subject of contention between the states of this Union after the Declaration
of Independence and during the Revolutionary War. We know that no sooner
was the Union cemented by the magnificent cession made by Virginia — "mother
of great men," she has been called ; doer of great deeds, she might be called—
no sooner had Virginia ceded to the United States the country northwest
of the Ohio, than the question arose how that country was to be formed into
states and those states admitted into' the Union. This question was of
necessity precipitated upon the Union by the deed of cession itself; for that
deed — and I beg our learned opponents to note the fact — contained an express
condition that the country ceded should be formed into distinct republican
states, aud that those states should bo admitted into the Union; so that the
United States, from the moment when they received that deed, stood as trustees
to execute these great purposes. Moreover, it will be found that, in order to en-
able the Uuited States fully aud completely to effect the purposes of the grant,
Virginia ceded all her " right, title, and claim, as well of soil as of jurisdiction,
' which the said Commonwealth hath to the territory or tract of country within
the lines of the Virginia charter, situate, lying, and being to the northwest of
the river Ohio, to and for the uses and purposes and on the conditions of the said
recited act." The recited act was the act of Assembly passed by Virginia author-
izing the conveyance, and declaring the trusts and conditions on which it was to
be made. (Journals of the Old Congress, IX. 67-69 ; XI. 139, 140.) The deed was
executed on the 1st day of March, 1784. Mr. Jefferson immediately undertook a
measure (in Congress) to provide for the formation of states in the territory, and
for their future admission into the Union.' But the power of Congress to admit a
new state, so originating aud so formed, was nowhere to be found in the articles
of confederation. Mr. Jefferson's resolves contained a prohibition against slav-
ery in the territory that was to operate after the year 1800 ; but this clause was
stricken out. The resolves, however, were passed, providing for the formation



Online LibraryGeorge Ticknor CurtisConstitutional history of the United States from their Declaration of Independence to the close of the Civil War → online text (page 53 of 88)