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but one of those who voted, and preferred to Was such a provision in that constitution a 463*] leave to the * Legislature the authority legal one in itself? of making the prohibition, instead of thus in A constitution is the will, deliberately ex. serting it absolutely in the fundamental law. pressed, of the whole people of a State; the
It is submitted that, under the well estab- most binding and solemn compact; original lished rule of this court, these decisions of the and organic; restrained in nothing which the judicial tribunals of Mississippi are conclusive people may desire to introduce, unless so reof the present controversy. No point is more strained by the previous compact of the same authoritatively settled than that the construc- people with their fellow-citizens of the rest of tion given to the constitution and laws of a the Union. State, not conflicting with those of the Union, If, then, it has been shown, that the people by the courts of the State, will be adopted by of Mississippi did prohibit the importation of this court. Green v. Neale, 6 Peters, 295. slaves, as merchandise, 'after 1st May, 1833,
And how is it attempted to obviate this clear that prohibition is binding and operative, un. intention of the people of Mississippi, as de- less it be contrary to the Constitution of the rived from the plain letter of their constitution; United States. from a comparison of this, with other language
Is it so? of that instrument; from a review of successive It is said that it is, because the Constitution efforts made by them to effect this object; from gives to Congress the power “to regulate com. that interpretation of their language which is merce with foreign nations, among the several consistent with the just and settled rules of States, and with the Indian tribes. construction; from the direct and authoritative hibition to import slaves into Mississippi, for exposition given by their own courts of justice ? sale within that State, such a regulation of How is it attempted to obviate this intention, commerce among the several States as Con. thus expressed?
gress had the sole authority to make? It is It has been done, by saying that the Legis. submittedlature of Mississippi regarded the clause of the 1. That it is not a regulation of commerce constitution, in 1833, as merely permissive to among the States. the Legislature; and that Governor Lynch, in 2. That if it were, it is one excepted from this 1837, 80 regarded it.
power of Congress, and remains in the State. If this were so, would it be an answer It 3. That if it were vested in Congress, it may was evidently the wish of the Legislature to also be exercised by the State. retain a power that the people had taken from I. The regulation of commerce among the them; they tried to obtain it by an amendment several States has been defined with such great of the constitution; it is natural hey should simplicity, distinctness, and recision by Chief seek it, that mode failing, by ingenious inter- *Justice Marshall, that it is useless to [*465 pretation. If it were so, their construction speculate upon it for ourselves. He says, in could avail nothing against that derived from the case of Gibbons v. Ogden, 9 Wheaton, 194, the rules already stated. But it is not so. The “it is not intended to say that these words 'to Act of March, 1833, shows the Legislature regulate commerce among the several States' thought an amendment of the constitution comprehend that commerce which is completenecessary to prevent the immediate and posi- ly internal, which is carried on between man tive operation of the prohibitory clause. The and man in a State, or between different parts Act of December, 1833, does not relate to those of the same State, and which does not extend who imported slaves for sale, in violation of to or affect other States. Such a power would the law, but to transient merchants, or persons be inconvenient, and is certainly unnecessary. selling their own slaves.
Comprehensive as the word 'among' is, it may As to the recommendations of Governor very properly be restricted to that commerce Lynch, they were to give effect to the provision which concerns more States than one. The by adequate penalties. The sales might be phrase is not one which would probably have made for cash, the payment on delivery; in been selected to indicate the completely interior such case, all the evils he adverts to would traffic of a State, because it is not an apt phrase occur, and the contract be completed, notwith for that purpose; and the enumeration of the standing the prohibition. So, too, in cases particular classes of commerce to which the 464*] where *the person seeking to discharge power was to be extended would not have been himself was he who received the slaves; a party made had the intention been to extend the to the illegal transaction; the courts would not power to every description. The enumeration interfere on his behalf; and thus the provision presupposes something not enumerated; and of the constitution would be violated. Cases that something, if we regard the language or like the present, where the defendant is igno- subject of the sentence, must be the exclusively rant of the transaction, and, from that circum- internal commerce of a State. The genius and stance could readily receive the aid of a court, character of the whole government seem to be might be expected seldom to occur.
that its action is to be applied to all the exter. These objections, therefore, if they could nal concerns of the nation, and to those internal have weight against such arguments as those concerns which affect the States generally; but presented to sustain the constitution of Missis. not to those which are completely within s sippi, are not, in reality, when properly exam- particular State, which do not affect other ined, objections to our construction of that in. States, and with which it is not necessary to strument.
interfere for the purpose of executing some of It may, then, be confidently said that, after the general powers of the government. The the 1st of May, 1833, it was unlawful, by the completely internal commerce of a State, then, constitution of Mississippi, to introduce slaves may be considered as reserved for the State into that State for sale, or as merchandise. itself."
Is it possible to conceive a case falling more case of Brown v. The State of Maryland. But dearly within this definition? Is not this a here this necessary ingredient is prohibited; the commerce carried on between man and man in article cannot be sold. There is, therefore, no the State of Mississippi ? Is it not a matter that object upon which commercial regulation can does not affect other States? Is it necessary act. for the general government to interfere for the In the only remaining case where this conpurpose of executing its powers! It is the im- stitutional clause was discussed, New York v. portation of a slave: the sale of a slave. His Milne, 11 Peters, 135, is there a word found being a slave; his being a subject of sale, is a which sustains the idea that this power authormatter depending solely on the State of Missis-ized Congress to interfere with the traffic in sippi. It is by the local law alone that the sub- slaves among the States, or the regulation in ject matter of importation and sale is created. regard to it ? The reverse. That case most No other State is affected by its existence or ably examines the decisions of Gibbons v. Ogden non-existence. It is not necessary for any and Brown v. The State of Maryland. Jt shows powers of the general government that it should that the former extended only to the regulation 466*] be able *to enforce this sale or this im. of navigation, under an act of Congress, as a portation, unless it has the power not to reg. branch of commerce; the latter involved the ulate but to create articles of commerce. It right of the State to interfere, by a tax, with does not differ, in principle, from the very the taxing power of Congress. But farther common prohibition against the introduction of than this, it (11 Peters, 136) sustains the very lottery tickets, or of bank notes under a certain position now submitted; that the regulation of denomination. Whether these are or are not commerce is intended to apply to "goods,” to articles passing in trade in a State, depends on the articles that are strictly merchandise. her own laws. Could Congress, because they Take, then, the construction given by this may be articles of traffic, deprive a State of ber court to this clause, and it is evident that conright to admit or exclude them? Suppose gress cannot make commercial regulations Mississippi had said no negroes shall be sold as about anything that is not in itself commercial slaves within her limits, can Congress interfere property, and so recognized by the State. to abolish this on the ground that it affects Now, the State of Mississippi does not recog. other States? That will not be contended; yet nize these as property subject to sale-subject if it cannot, then its interference to regulate the to commerce when thus imported. It seems it disposition of them-the manner in which they does not recognize them as such property at all; are to be dealt with, is assuming a power over they are at the disposition of the Legislature, a subject matter which the States themselves under the Act of 1822; but at all events they can abolish or create.
are property liable to commercial traffic when To avoid the force of this inference, a dis- so introduced. In the case of The State of Mistinction has been taken in regard to the impor. sissippi v. Jones, Walker, 83, the law of that tation of slaves into the slave-holding and non- State was established clearly that they were slave-holding States. But where is this distinc- the creatures only of positive law, not property tion found ? Certainly not in the letter of the by any other right. Constitution; certainly not in its spirit. It is II. But suppose that slaves are to be so readmitted that the importation of a slave into garded, still, as a regulation in regard to propNew York, where the sale as a slave and his erty brought into the State, these prohibitory detention in slavery are forbidden, may be pro- enactments are authorized. hibited; yet it is urged that the importation of This court, in the cases of Gibbons v. Ogden a slave into Mississippi, where his sale, when and Brown v. The State of Maryland, had laid 80 brought, is forbidden, cannot be prohibited. down the rule that a State might do whatever The distinction is not to be sustained. Com- was necessary to protect itself internally: its merce is the traffic in articles which are the sub- quarantine, * police, pilot laws, etc., all (*468 jects of traffic, either in the place from which relating to and connected with navigation and they are brought, or the place to which they commerce. But in the case of New York v. Milne, are taken. If the place from which they are 11 Peters, 139, this principle was more broadly brought is the test, then is every slave taken and fully enunciated. After declaring that the from Virginia to New York an article of com. authority of a State is "complete, unqualified merce, and any regulation by the latter in and conclusive" in relation to those powers regard to him is a violation of the Constitution. which refer to merely municipal legislation, If the place into which they are imported de- the court observe that “every law comes withtermines their character, then is the privilege in this description which concerns the welfare of the slave State, in regard to their disposition of the whole people of a State, or any individual as matters of commerce, as strictly constitu- within it; whether it relates to their rights or tional and complete as that of the free States. their duties; whether it respects them as men
On the principles, then, laid down in the or as citizens of the State." This view clearly case of Gibbons v. Ogden, this is clearly a matter embraces the present case. The evils against of commerce, depending on the State laws, af- which the people of Mississippi desired to profecting the State laws, and not necessary for tect themselves have been fully pointed out. any of the purposes of the general government. Their determination to stop the introduction
But it is said that, being an importation of of slaves without corresponding emigration; to an article, it necessarily presumes intercourse, guard against the admission of the vicious which is commerce. To that it is answered, through the deceptions of negro traders, were 467*] *that mere intercourse, even between evidently objects of proper municipal regula. different States, is not commerce; it must be tion, equally concerning the welfare of the intercourse connected with, or auxiliary to trade. whole people of the State, and that of many Such is the evident meaning of the court in the an individual within it.
III. But suppose this to be a commercial reg. a new power of regulation gwaits them, who ulation not of the class above referred to, but can tell what may be its efiect on the instituone which Congress might make, still is the tions and power of the Union itself? power of Congress exclusive or concurrent? On all these grounds, therefore, it is submit. It is not meant to contest the general principle ted that this prohibitory clause in the consti. assumed by the counsel of the defendant, that, tution of Mississippi is not only clearly ex. in matters clearly within the scope of those pressed, but is in itself a legal and constitupowers and duties pertaining to the general tional provision. government, it is exclusive; but is this such a The next question is: was the conduct of the case ?
In matters which are legitimate objects plaintiff below intentionally at variance with of legislation by the States, they may exercise this provision of the fundamental law? That a power as well as the general government. *it was is evident when we take the (*470 Each may levy taxes; each may regulate pas- whole transaction together. The sale of the sengers coming in foreign vessels; each may imported negroes formed necessarily a part of improve navigable streams. Are not the powers the transaction, without which the violation of now claimed by the State of Mississippi of this the law was not complete. It will be seen that class? Even if we admit Congress might regu- the introduction of slaves into Mississippi from late them, could not that State also do so? other States is not forbidden. They may be And if not, to what serious evils might it lead! brought there by persons coming to the State Congress has never yet acted on the subject; for a limited period, or intending to remain there yet who can deny that it is a subject that must permanently. It is only when brought there have been acted on? It is submitted, therefore, to be sold that the constitution is violated. The on all these grounds, that this is not a regulation evidence of this object-the only violation of of "commerce among the States,” according to the law-is the sale, or the offer to seil. Until the meaning of the Constitution; but if it is, it that moment the crime is res infecta, an un. is one that the States themselves have also a accomplished act; when the slave becomes the right to make.
subject of a bargain, then it is thai che intro. Nor should we forget that this is a settled duction as merchandise is apparent, and the construction given from the earliest days of the violation of the law complete. Whether there government by Congress, by the States, and might not be an act indicating the intention and 469*] *by the courts of the United States and purpose for which the slaves were introduced, the States. Congress, when it admitted the other than the contract for their sale, it is not States of Alabama, Illinois, Missouri, Arkansas, necessary to discuss; when the sale follows it as well as Mississippi, approved of constitutions forms part of the illegal transaction; charachaving similar provisions in them. In nearly terizes the introduction; shows its improper every State of the Union laws of the same character; and so taints the whole bargain that, character have been enacted without hesitation, to consummate it through the agency of a court, even from the days of the Revolution. They would in the language of Chief Justice Wilmot, exist in the free States, as well as the slave “pollute the pure fountain of justice." States, for the principle is the same. If the Here, then, is a solemn provision of ihe constiright to forbid importation for sale does not tution of Mississippi, and a transaction of the exist, how can it be exercised in a free State defendant in error yet unfinished, which is in more than in a slave State? The decisions of direct violation of it. He now seeks to compel courts of the United States and of numerous the completion of this transaction, to accomStates of the Union, recognizing the validity of plish the business for his own benefit, and in laws which depend on this principle, have been the face of the law of Mississippi, at the ex. already referred to so fully that it is unneces- pense of third persons, and through the agency sary to dwell further upon them. Now, it is re- of this court. Can he do so ? That he cannot spectfully asked, can this court undertake for is a principle established by the laws of every the first time to give a construction to the Con civilized country. By the Roman Law (1 Postitution which will set at naught these consti-thier on Ob. 25; Story's Con. of laws, 204) it tutional provisions of the States, these laws, was well settled that where the foundation of and this uninterrupted series of judgments of a contract or a promise was an act repugnant judicial tribunals ? 'Yet it is in vain to disguise to justice, good faith, or morals, the promise it that this must be the effect of a decision in could not be enforced in a court of justice. By favor of the defendant on this point of the case. the common law, as settled by repeated deciIt would indeed be, as was said, to sacrifice a sions of English courts, wherever a transaction hecatomb of laws. And for what purpose-contravenes the general policy or the express what good? Have not these regulations been stipulations of the law, no form of expression safe, just, and prudent? Are they not con- is permitted to veil its inherent impropriety; formed to the feelings, opinions, and laws of the real object of each party to the contract the several States, whether permitting or pro will be examined, and if either is found to hibiting slavery? Would these be better suited be aiming at that which is repugnant to prin: by what Congress would do? On the contrary, ciples established for the general benetit of would not an attempt on the part of Congress, * society, the courts of justice will re- [*471 now for the first time after a lapse of fifty pudiate it, however artfully the arrangements years, exclusively to do that which the States have been made to accomplish the desired end. have always done themselves, strike a blow at Where both have been equally guilty, the the laws and institutions of the States? Would courts have with equal pertinacity refused to the free States readily submit, or would slave interfere, though that refusal has indirectly States ! If such fate is reserved for the consti- benefited one of the guilty parties. Casuists in tutions, laws, and judicial decisions of the the law of nature and of conscience have specSlites; if they are all to be broken down, and 'ulated on the obligations which bind those
who profit by such contracts to fulfill them; | Cranch, 242 was one where a resolution of but the common law, with a clearer and more Congress had declared that an enemy's vessel, honest perception, has repudiated all such spec- captured by her own crew, should be a lawful ulations, and has refused totally and peremp- prize to the captors. Eave, the captain of a torily to interfere.
British vessel, during the war, found himself It would be easy to trace this principle in a sinking condition, and agreed with the through a number of adjudged cases, illustra crew that they should put into a port of the ted by every variety of facts, but this is need. United States and libel the vessel as captors, less. It will be sufficient to advert to a few of and that he would hold a certain portion of the unquestioned authority, which exhibit it under proceeds, in trust for the owners. The vesse) circumstances analogous to the present case. was condemned and sold, and the owners sued
It is an established rule, to which no excep- the captain under this contract. This court tion has been produced, that prohibited goods denied their right to recover, because the concannot form the consideration of a valid con. tract was against the resolution of Congress. tract; a principle laid down by Huberus, rec. In the case of Patton v. Nicholson, 3 Wheaton, ognized by Lord Mansfield, and never denied 204, Patton became possessed (without any in. by one single authority. Story's Con. of Laws, tercourse with the enemy) of a British license, 209. That was the principle in Law v. Hodg. in time of war. This he sold to Nicholson son, 2 Campbell, 147, in regard to the bricks; (who had not assisted in procuring it), and took there the making of such articles was forbid his note in payment. A suit was brought to den, and every contract in relation to them was recover the amount. This court refused to invoid. That was the principle in Billard v. terfere to sustain the suit, on the ground that Hagan, 2 Carr. & Payne, 472, where the im the procuring of such a license being unlawful portation of the silks was prohibited; and it the sale of it was equally so. In the case of was exactly a similar case to the present, for it Armstrong v. *Toler, 11 Wheaton, 258, (*473 was a suit against the acceptors of a draft giv- the law upon this subject was very fully examen in payment of the articles after their im- ined. That was a case where goods were importation.
ported into the United States contrary to law, The next principle, which also is indisputable, and consigned to Toler. They were libeled, is, that wherever the object of a prohibition is and, before trial, delivered to Armstrong; Toler, to protect the public, and not one for purposes the consignee, giving security for the whole, of revenue, or some regulation connected with on agreement of Armstrong to repay him if the execution of municipal laws, there can be they were condemned. They were, and the no recovery by a person who has committed an amount secured was paid by Toler, who sued act at variance with the prohibition, whether | Armstrong to recover this amount. This court the act be the particular thing forbidden or not. sustained his right to recover, on the ground In the case of Steers v. Leshley, 6 Durn. & East, that the agrecment was unconnected with the 61, the sale of stocks was prohibited, as against illegal act; and was a new contract, founded public policy, and the court refused to allow a entirely on a new consideration, and not af. person to recover, who had advanced money to fected by the illegal proceeding; but that it pay a difference; not actually to buy the stock. would have been otherwise, if Toler had been So in Langton v. Hughes, 1 Maule & Sel. 563, himself interested in the goods illegally im. the adulterating of beer was prohibited, and ported, or had been concerned in the scheme. the sale of articles to a person engaged in adul. They added “that where the contract grows 472*] terating it *was not deemed a ground immediately out of, and is connected with an for recovery. So in the case of Fales v. May- illegal or immoral act, a court of justice will berry, 2 Gall. 560, the employment of vessels not lend its aid to enforce it, and if the contract in the slave trade was prohibited; and the pur- be, in fact, only connected with the illegal chase money of a vessel sold in a foreign countransaction, and growing immediately out try, after her employment ceased, could not of it, though it be in fact a new contract, be recovered. There has been no authority pro- it is equally tainted by it.”. In the case of duced to contradict this principle; yet it is Gaither v. The Farmers' Bank of Georgetown, completely applicable to our case.
1 Peters, 37, the bank made an usurious conThe principle contended for by the defend-tract with Corcoran, who indorsed over to ant is, that in the present case the contract is them, as collateral security, a note from Gaither merely collateral and not a part of the illegal to him, who had nothing whatever to do with transaction. This is not so. It is clearly the the transaction between Corcoran and the bank. only real part of the transaction, and the sub- On this note, the bank brought suit as indorsees, tle train of reasoning, by which it is attempted but this court refused to sustain their right to to show that it is not, is neither accordant to recover, on the ground that it was tainted and the morals or the judgment. But admit it to destroyed by its connection with the usurious be correct; it yet applies only in cases where and illegal transaction. In the case of Bartle the principles above asserted do not exist. It v. Coleman, 4 Peters, 184, Bartle, a contractor does not apply to cases where there is a positive for rebuilding a fort made a corrupt agreement prohibition to import an article, or to do a with Marsteller, the public agent, charged with certain act. In one case already cited (1 the superintendence of the work, and Coleman M'Clellan & Young, 122) neither party knew to divide the profits; Marsteller was to make of the prohibition, yet the sale was held to be the certificates, and Coleman to receive the void.
money from government and disburse it. The These are the cases at common law. Let us fraudulent character of the affair was discov. look to our own decisions.
ered, and the contract dissolved. Marsteller This court has examined the same principle died. A suit was brought by Bartle to obtain in several cases. That of Hannay v. Eave, 3'a settlement of accounts between him and Cole
man. clared that where a loss was the result of a to the contract. If it be not a violation of the violation of the laws the parties must be left prohibition to enforce the payment of the sum to settle the matter between themselves. In for which these slaves were sold, it would be law. the case of Craig v. The State of Missouri, 4 ful to have enforced their delivery to the pur. Peters, 436, Craig purchased of the State cer- chaser, had the importer stopped short in his 474*] tain *loan office certificates, emitted by course of illegal proceeding, and refused to con: the State, under a general State law, but which summate it by completing the sale. Who will were, in fact, bills of credit. For this purchase, assert this? Who will suggest that any court he gave a note to the State, and this suit was would lend its power for such a purpose? Yet brought to recover the amount. This court re- if each side of the contract has, as it must have, fused to sustain the demand, because the issue of equal weight, we must admit the propriety of the certificates was a violation of the Constitu- enforcing the delivery of the slaves, or we must tion. It will thus be seen that, by a uniform ser refuse to aid in compelling the payment of the ies of accordant decisions, the common law sum for which they were sold. courts of England, of the States, and of the Un- But suppose that the actual violation of the ion, have irrevocably fixed the great rule in re- law ended with the introduction of the slaves, gard to a remedy for violated contracts, that and that the act of selling them did not fall no plaintiff will receive the aid of the court, within the letter of its prohibition. Is it neces. in prosecuting his claim where it is founded sary that the improper act should be a direct on à violation of the law, or an act contrary and literal violation of a statutory provision ? to public policy. This rule asserted, more than Certainly not. It was not so in any of the cases a century ago, in the comprehensive language cited. It was not so in that of Bartle v. Coleof Holt, when he said that "every contract made man, decided by this court. It is not held to for or about anything that is prohibited by a be so in the annunciation of the principle any. statute, is void," receives in our own day its where. If the act be "against the policy of final stamp from one of as clear honesty, and of justice,” it vitiates the bargain as fully as if it broader genius, when he affirmed, and main-is contrary to the letter of the law. In Jones tained it, though the plaintiff and the contrac- v. Random, 1 Cowper, 39, it was admitted that tor was a sovereign State.
the contract was against no law, but against In no case cited or known has this rule been morality and sound principles, and it was held infringed; never has the plaintiff been permit to give no ground for recovery. In Leerot v. ted to profit immediately or remotely by the Riley, 3 Durn. & East, 24, where there was no consequences of his violation of the law. In violation of the bankrupt law, but an act in. some of the instances adverted to nice distinc fringing its spirits, the same rule was laid down. tions have been drawn to prevent a defendant, In Hunt v. Knickerbacker, 5 Johns. 333, it was who was himself a participator, from escaping held that when any contract will lead to a viofrom his share of the loss; but even then, the lation of law in its execution, it is void; and, in plaintiff has been required to satisfy the court *Sydenberg v. Charles, 4 Serg. & Rawle, (*476 that the actual matter of contract was but re- 173, the court said no form of contract could motely or indirectly connected with the illegal prevent an examination of its real nature. transaction, and that, if acquainted with, he To argue that to sell slaves, known to be inwas yet free from participation in it.
troduced in direct violation of the constitution In the present case, the rule applies with full of a State, and especially to permit that sale to force, and is met by all the facts which are nec- be made by the person so introducing them, is essary to its complete recognition. The party "against the policy of that constitution, seeing who seeks the benefit of this violation of the to be a work of supererogation. What can betconstitution of Mississippi is he who violated ter indicate the general policy of a State, in reit; the contract, if fulfilled, gives him a reward, gard to such an act, than the positive prohibi. in an immense sum of money, for the success- tion of the previous step necessary for its acful accomplishment of that violation; it is complishment? What could show the policy done at the expense of those who were inno- of the Constitution of the United States, in recently made, to some extent, parties, if not to gard to selling bills of credit by a State, more the offense, yet to the transaction incident to clearly than the prohibition to issue them! it; the contract, the bargain, the sale, is part of Would this court, then-even if the sale of these the illegal act, since, without that, there was slaves were not prohibited-would it interpose but an imperfect violation of the law, confined to protect an act to secure a profit from an act to the breast and intention of the plaintiff; it which is indisputably at variance with the set475*) is, in no sense, a new *or separate pro- tled and avowed policy of the State, and known ceeding; it is like the purchase of the bills of to be so by the plaintiff below when he made credit, after they had been created by a law of his bargain ! Missouri; like the sale of the silk goods, after In conclusion, then, it is submitted, that the they had been smuggled; like the agreement to judgment of the court below was wrong; be. divide the proceeds of the capture with those cause the transaction, which formed the conwho were not entitled to it; like the bargain sideration of the note sued on, was contrary to for the bricks made contrary to the provisions the letter of the constitution of Mississippi, and of the statute.
contrary to the policy of its constitution and If any doubt could remair whether or not legal provisions; and because, in such a case, the illegal act, the violation of the constitution courts of justice will not interfere to enforcé of Mississippi was, in fact, the consideration the contract, for one party or the other. of this contract--this promise on the part of the Mr. Jones, for the defendant in error: maker of the note, that doubt would be removed This case is of much importance in principle. by applying to it the test of Lord Mansfield,'and it is also so, because of the very large