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Preston v. Bracken. 10 H.

As the territory of Wisconsin has been admitted into the Union as a State since the passage of this supplementary act, the 2d section applies the provisions of the Florida act to the cases pending in its courts, and to the judgments existing therein, at the time of its admission.

But it will not be material to refer particularly to those provisions, as this 2d section does not bring the case before us within them. It applies them to all cases pending in the several courts of the territory; and to all cases in which judgments or decrees shall have been rendered at the time of the admission, and not previously removed by writ of error or appeal to this court. In this case, the judgment had been rendered and removed before the admission, and was pending here at the time; and is, therefore, unaffected by this supplementary

act.

The section was drawn, doubtless, under the supposition, that, if the suit was pending here, at the time of the admission of a territory into the Union as a State, on appeal or writ of error, no legislation was necessary to preserve or give effect to the jurisdiction of the court over it; an opinion, as we have seen, founded in error.

In placing the want of jurisdiction, however, upon this ground, we must not be understood as admitting that, if the provisions of the Florida act of the 22d of February, 1847, applied to the case, the jurisdiction could be upheld. For, if we are right in the conclusion that, even assuming the record in the case had been transferred from the territorial to the district court of the State, our jurisdiction would still be incomplete and ineffectual, inasmuch as that court possessed no power to carry the mandate into execution, the case not being one of federal jurisdiction, the result would be the same as that at which we have arrived.

In every view, therefore, we have been able to take of the case, we are satisfied that our jurisdiction over it ceased with the termination of the territorial government and laws; and that it has not been revived or preserved, if indeed it could have been, by any act or authority of congress on the subject, and that the writ of error must be abated.

SYLVESTER B. PRESTON, WILLIAM KENDALL, WILLIAM NICHOLS, and WILLIAM T. PHILLIPS, Plaintiffs in Error, v. CHARLES BRACKEN.

10 H. 81.

The next preceding decision affirmed and applied to this case.

May, for the plaintiffs.

Walker, contrà.

Strader v. Graham. 10 H.

NELSON, J., delivered the opinion of the court.

This is a writ of error to the supreme court of the late territory of Wisconsin.

The suit was an action of ejectment brought by the

plaintiff *below, the defendant in error, in the second; and [*82] removed to the third judicial district of the territory, to re

cover possession of a small piece of land; and was commenced on the 15th of April, 1845.

Issue being joined between the parties, such proceedings were had thereon, that judgment was afterwards rendered against the defendants in the June term of said court in the year 1846.

The case was afterwards removed to the supreme court of the territory, and the judgment of the court below affirmed by a divided opinion at the July term of that court, to wit, on the 2d of August, 1847.

The judgment was afterwards removed to this court by a writ of error for review. The citation is signed 22d November, 1847.

The case was, therefore, pending here on the 29th of May, 1848,1 at the time of the admission of the territory into the Union as a State. It is one not of a federal character, but belonging to the state judicature, and therefore falls within the decision of the case of McNulty v. Batty and others, 10 How. 72, just made, and the writ of error must be abated.

10 H. 646.

JACOB STRADER, JAMES GORMAN, and JOHN ARMSTRONG, Plaintiffs in Error, v. CHRISTOPHER GRAHAM.

10 H. 82..

The question whether slaves, held in Kentucky, are made free by going into Ohio, with the permission of their master, is purely a question of local law, over which this court cannot take jurisdiction under a writ of error to the court of appeals of the State of Kentucky, under the 25th section of the judiciary act of 1789, (1 Stats. at Large, 25.)

The effect of the ordinance of 1787 for the government of the territory northwest of the Ohio, considered.

THE case is stated in the opinion of the court.

Jones, for the plaintiffs in error.

Crittenden, contrà.

*TANEY, C. J., delivered the opinion of the court.

This case is brought here by writ of error directed to the

court of appeals of the State of Kentucky.

[*92]

19 Stats. at Large, 233.

Strader v. Graham. 10 H.

The facts in the case, so far as they are material to the decision of this court, are briefly as follows. The defendant in error is a citizen of the State of Kentucky, and three negro men, whom he claimed and held as his slaves, were received on board the steamboat [*93] Pike, at Louisville, without his knowledge *or consent, and transported to Cincinnati; and from that place escaped to

Canada, and were finally lost to him.

The proceedings before us were instituted under a statute of Kentucky, in the Louisville chancery court, against the plaintiffs in error, to recover the value of the slaves which had thus escaped, and, in default of payment by them, to charge the boat itself with the damages sustained. Strader and Gorman were the owners of the boat, and Armstrong the master.

The plaintiffs in error, among other defences, insisted that the negroes claimed as slaves were free; averring that, some time before they were taken on board the steamboat, they had been sent, by the permission of the defendant in error, to the State of Ohio, to perform service as slaves; and that, in consequence thereof, they had acquired their freedom, and were free when received on board the boat.

It appears by the evidence, that these men were musicians, and had gone to Ohio on one or more occasions, to perform at public entertainments; that they had been taken there for this purpose, with the permission of the defendant in error, by a man by the name of Williams, under whose care and direction he had for a time placed them; that they had always returned to Kentucky as soon as this brief service was over; and for the two years preceding their escape, they had not left the State of Kentucky, and had remained there in the service of the defendant in error, as their lawful owner.

The Louisville chancery court finally decided, that the negroes in question were his slaves; and that he was entitled to recover $3,000 for his damages. And if that sum was not paid by a certain day specified in the decree, it directed that the steamboat should be sold for the purpose of raising it, together with the costs of suit. This decree was afterwards affirmed in the court of appeals of Kentucky, and the case is brought here by writ of error upon that judgment.

Much of the argument on the part of the plaintiffs in error has been offered for the purpose of showing that the judgment of the state court was erroneous in deciding that these negroes were slaves. And it is insisted that their previous employment in Ohio had made them free when they returned to Kentucky.

But this question is not before us. Every State has an undoubted right to determine the status, or domestic and social condition, of the persons domiciled within its territory; except in so far as the powers

Strader v. Graham. 10 H.

of the States in this respect are restrained, or duties and obligations imposed upon them, by the constitution of the United States. There is nothing in the constitution of the United States that can

in any degree * control the law of Kentucky upon this subject. [*94 ] And the condition of the negroes, therefore, as to freedom or slavery, after their return, depended altogether upon the laws of that State, and could not be influenced by the laws of Ohio. It was exclusively in the power of Kentucky to determine for itself whether their employment in another State should or should not make them free on their return. The court of appeals have determined that, by the laws of the State, they continue to be slaves. And their judgment upon this point is, upon this writ of error, conclusive upon this court, and we have no jurisdiction over it.

But it seems to be supposed in the argument, that the law of Ohio upon this subject has some peculiar force by virtue of the ordinance of 1787, for the government of the northwestern territory, Ohio being one of the States carved out of it.

One of the articles of this ordinance provides, that "There shall be neither slavery nor involuntary servitude in the said territory, otherwise than in punishment for crimes, whereof the party shall have been duly convicted. Provided always, that any person escaping into the same, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed and conveyed to the person claiming his or her labor or service as aforesaid." And this article is one of the six which the ordinance declares shall be a compact between the original States and the people and States in the said territory, and forever remain unalterable unless by common consent.

The argument assumes that the six articles which that ordinance declares to be perpetual, are still in force in the States since formed within the territory, and admitted into the Union.

If this proposition could be maintained, it would not alter the question. For the regulations of congress, under the old confederation or the present constitution, for the government of a particular territory, could have no force beyond its limits. It certainly could not restrict the power of the States within their respective territories; nor in any manner interfere with their laws and institutions; nor give this court any control over them. The ordinance in question, if still in force, could have no more operation than the laws of Ohio in the State of Kentucky, and could not influence the decision upon the rights of the master or the slaves in that State, nor give this court jurisdiction upon the subject.

But it has been settled by judicial decision in this court, that this ordinance is not in force.

Strader v. Graham. 10 H.

The case of Permoli v. The First Municipality, 3 How. 589, depended upon the same principles with the case before us. [*95] *It is true that the question in that case arose in Louisiana. But the act of congress of April 7, 1798, c. 28, 1 Stats. at Large, 549, extended the ordinance of 1787 to the then territory of Mississippi, with the exception of the anti-slavery clause; and declared that the people of that territory should be entitled to and enjoy all the rights, privileges, and advantages granted to the people of the territory northwest of the Ohio. And by the act of March 2, 1805, c. 23, 2 Stats. at Large, 322, it was enacted that the inhabitants of the then territory of Orleans, should be entitled to and enjoy all the rights, privileges, and advantages secured by the ordinance of 1787, and at that time enjoyed by the people of the Mississippi territory.

In the case above mentioned, Permoli claimed the protection of the clause in one of the six articles which provides for the freedom of religion, alleging that it had been violated by the First Municipality. And he brought the question before this court, upon the ground that it had jurisdiction under the ordinance. But the court held that the ordinance ceased to be in force when Louisiana became a State, and dismissed the case for want of jurisdiction. This opinion is, indeed, confined to the territory in which the case arose. But it is evident that the ordinance cannot be in force in the States formed in the northwestern territory, and at the same time not in force in the States formed in the southwestern territory, to which it was extended by the present government. For the ordinances and pledges of the congress of the old confederation cannot be more enduring and obligatory than those of the new government; nor can there be any reason for giving a different interpretation to the same words used in similar instruments, because the one is by the old confederation and the other by the present government. And when it is decided that this ordinance is not in force in Louisiana, it follows that it cannot be in force in Ohio.

But the whole question upon the ordinance of 1787, and the acts of congress extending it to other territory afterwards acquired, was carefully considered in Pollard v. Hagan, 3 How. 212. The subject is fully examined in the opinion pronounced in that case, with which we concur; and it is sufficient now to refer to the reasoning and principles by which that judgment is maintained, without entering again upon a full examination of the question.

Indeed, it is impossible to look at the six articles which are supposed, in the argument, to be still in force, without seeing at once that many of the provisions contained in them are inconsistent with the present constitution. And if they could be regarded as yet

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