author:
Mr. Chief Justice TANEY Mr. Justice McLEAN.
      Mr. Justice CATRON.

text:
    Jacob Strader, James Gorman, and John Armstrong, Plaintiffs in error, v. Christopher Graham.
    Under the 25th section, of the Judiciary Act, this court has no,jurisdiction over the following question, viz. “ Whether slaves who had been permitted by their'master to pass occasionally from Kentucky into Ohio acquired thereby a right to freedom after their return to Kentucky ? ” The laws of Kentucky alone could decide upon the domestic and social'condition of the persons domiciled within its territory, except so far as the powers 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.
    The Ordinance of 1787 cannot confer jurisdiction upon this court. It-was itself superseded by the adoption of the Constitution of ihe United. States, which placed all the States of the .Union upon .a perfect equality, which they would not be if . the Ordinance continued to be in force after its adoption.
    Such of the provisions of the. Ordinance as are yet in force owed their validity to acts- of Congress passed uri^Ier the present Constitution, during the Territorial government of the Northwest Territory, and since to the constitutions, and laws of the States formed in it.
    In error to the Court of Appeals for the State of Kentucky.
    The defendant in error, who was a citizen of Kentucky, filed his bill in the Louisville Chancery Court, against Jacob Stradér and James Gorman, who were citizens of Ohio, and owners of the steamboat Pike, which plied between Louisville, Kentucky, and Cincinnati, Ohio, and John Armstrong, who' was the captain of said steamboat.
    The bill alleged, that the complainant was the owner of three negro slaves, George, Henry, and Reuben, of the value of about fifteen hundred dollars each, who had left his. residence at Harrodsburg,' Kentucky, and made their way to Louisville, whence they were taken on board of said steamboat Pike, and carried to Cincinnati,, from which place they' escaped to Canada, and were lost to t,heir .owner. Complainant averred that he had a lien on said boat by reason of the asportation of said slaves, for the damages he had. sustained, and prayed an attachment and sale of said boat, and general, relief.
    An attachment was ordered and served, but the boat was ¡relieved upon bond being given to perform all orders of the court,. or. to have the boat forthcoming.
    Two of the defendants in the court below (Strader and Gorman), in their answer, stated that they were not on board the . boat at the time of the alleged transportation, had no knowledge of such transportation, and they, therefore denied it. They alleged that the boat was under the command of the-defe.ndant Armstrong, her captain, and that the negroes in question had been permitted by the complainant to travel out of the Commónwealth as if free; and in an amended answer, they averred that, long before the alleged transportation, the said negroes had actually become free. The answer of- Armstrong was substantially to the same effect. There were various proceedings had'in the State courts, the case having been 'twice, carried to the Court of Appeals, when Graham finally succeeded in obtaining a decree in the Louisville Chancery Court for $> 3,000 damages, to be paid béfore a day named, or the boat, her furniture, tackle, &c., to be sold if forthcoming, and.if not forthcoming, the court to make the necessary order, against the obligors, in 'said forthcoming .bond; which decree was affirmed by the Court of Appeals. To reverse the decree of affirmance, this writ of error was sued out.
    By the statute of Kentucky' approved 7th January, 1824, any master or commander of a steamboat or other vessel, who. shall hire or employ, or take as passengers on-board of such steamboat or other vessel, or suffer it to be done; or otherwise take out of the limits of the Commonwealth, any slave or slaves, without permission of the master of such.slave or slaves, shall be liable to damages to the party aggrieved by such removal; and the steamboat or other vessel on board of which such of-' fence was committed shall be liable, and may be proceeded against in chancery, and may be condemned and sold to .pay such damages and costs of suit.
    The amended act, approved 12th February, 1828, extends the remedies given by the former act, so as to embrace the owners, mate, clerk, pilot, and engineer, as well as the master, and they are declared to be liable to the action of the party aggrieved, “ either jointly with the masters, or severally, and either at law or in chancery.”
    It appeared in evidence, .that the negroes were, the slaves of Graham, and that they were musicians; that, for their improvement in music, two of them were placed under the care of one Williams, who was a skilful performer and leader of a band, and were permitted to go with him to Louisville, and other places, and play with him at public entertainments. The following permit, was filed as an exhibit, and proved.
    “ Hwrrodsburg, August 30th, 1837..
    “ This is to give liberty to my boys, Henry and Reuben, to. go to Louisville; with Williams, and,to play with him till I may wish to call them home. Should Williams find it his interest to take them to Cincinnati, New Albany, or any part of the South, even so. far as New Orleans, he is at liberty.to do so. I receive no compensation for their services, except that he is to board and clothe them.
    “ My object is to have them well trained ,in music. They are young, one 17 and the other 1& years ;of age. They are both of good disposition and strictly honest, and such is my confidence in .them, that I have no fear that they will ever [act] knowingly wrong, or put- me to trouble. They are slaves for. life, and I paid for them an unusual sum; they have been faithful, hard-working servants, and I have no fear but that they will always be ■ true to their duty, no matter in what situation they may be placed. C. Graham.. M. D.
    “ P. S. Should they not attend properly to their music, or disobey Williams, he is not only at liberty, but requested, to bring them directly home. C. Graham:.”
    Under this permission, Williams, in the year 1837, made several excursions -with his band, including the slaves Reuben and Henry, to Cincinnati, Ohio, and New Albany and Madison, Indianá, for the purpose of playing at balls or public-entertainments'; after which he returned to Louisville, his place of residence, said slaves returning with him.; from which time to the time of their escape in 1841, they had remained within the State of Kentucky.
    The case was argued by Mr. Jones, for the plaintiffs in error,. and Mr.-Crittenden, Attorney-General, for the defendants in error.

      Mr. Jones, for the plaintiffs in error.
    The owner of the slaves in question placed them under the care of a person to learn music, who carried them out of the State of Kentucky into an adjoining free State to play- at balls and parties for hire.. ; As soon, then, as they touched the soil of Indiana or Ohio, With the consent of their master, the quality of freedom, attached to their persons, and could never afterwards be dissociated from them; and it made no difference whether they went permanently, or as mere temporary sojourners. There was no distinction, either in reason or in law, to be drawn from the' mere duration of commorancy, if the removal to a free State was voluntary on the part of the slave and with the permission .of the master. The Ordinance of 1787 declares that neither slavery nor involuntary. servitude shall exist in the Northwest Territory. The laws of Ohio and Indiana only reiterate the provisions of that Ordinance. The instant, therefore, the slave came within the boundaries of such States, the la\vs of those States took, effect upon his condition, and eo insianti he became- clothed with every attribute of freedom.
    - Mr.. Jones concluded the opening argument by reading from the brief of Mr. Duncan, filed in the case, as follows: -r-
    , The Ordinance of 1787 was made after Somerset’s case, and after several of our States, had passed laws, whose object was to put an end to slavery within their jurisdictions, by operating on the post nati '. It has been claimed to be a solemn compact, as well as an ordinance. Its provisions are as broad and comprehensive as they could be made, inhibiting slavery and involuntary servitude, except for. crime, within the Northwest Territory.
    That .the courts of Kentucky are bound to take notice of this Ordinance, and to know judicially that slavery is forbidden in this Northwest Territory, are propositions long since settled by the Appellate Court of Kentucky. See Rankin v. Lydia, 2 A. K. Marshall, 467.
    When Ohio and Indiana were permitted to make their constitutions, and were admitted into the Union by acts of Congress, the courts of Kentucky were still bound to know, judicially, that slavery was. prohibited there by the fundamental law of each of those States. It will not be forgotten, that all this Territory and Kentucky were component parts of Virginia when the Ordinance was made.
    By force of the Ordinance and of the Constitution of the United States, and the acts of Congress for the admission of Ohio and Indiana -as States, those States, stand as to the subject of slavery like England, excepting only the cases provided for. by the Constitution-of the United States, and fairly em-, braced within its provisions.
    . For national purposes, all of our States aye governed by the same-laws, and •; constitute ' one government; for other purposes, .they are separate and independent sovereignties, with laws' and institutions, altogether different. 2 Peters, 590. And with respect to their .municipal regulations the several States are to each other -foreign. 2 Wash. 29.8. Slavery has been decided to be local, and to depend upon the local law. Somerset’s case, State Trials; 1 Lofft, 1; 3 A. K. Marshall, 470-472; 3 Ros. & Pull. 69 ; 2 Barn. & Cress. 448 ; 2 Martin, N. S. 403.
    In the ‘case last cited, Lunsford v. Coquillon, the Supreme Court of .-Louisiana decided, that by removing a slave to Ohio that slave became’instantly free by operation oflaw, and being once free there, the slave was free everywhere. The case of Rankin v. Lydia, above cited, maintains substantially the same propositions.
    The case of Elizabeth Thomas v. Generis, &c., 16 La. Rep. presented these facts. The slave was ’ sent from Kentúcky to Illinois, to be put under the charge of an eminent physician, .during- the absence of the .owner. But this was done under circumstances to warrant the inference that the owner, consented to the .slave residing there. The Supreme Court of Louisiana on such facts say (p. 488), — “ íf the plaintiff resided in Illinois with the express or implied consent, and with the knowledge and tacit authorization, of her former master, she? was under no obligation to serve him there. The bond of' slavery once dissolved cannot be renewed by a subsequent removal of a ’ slave so circumstanced into a slaveholding State.” 5 Leigh, 615 ; 10 Leigh, 697; 9 Gill & Johns. 19.
    . In- the case of’ Louis v. Cabarrus, 7 La. Rep. 172, the converse of the proposition was.laid down in these words: — “ The residence of a slave in Ohio contrary to the will'or without the knowledge of his owner, does not deprive the owner of his property.”
    ■ In Frank v. Powell, 11 La. Rep. 500, the court says, — “ The owner must be presumed to consent to emancipation of a slave by his removal to Ohio.”

      In Smith v. Smith, 13 La. Rep. 444, the court says the fact of a slave being, taken to a country where slavery or involuntary servitude is not tolerated, operates on the condition of the slave, and produces immediate emancipation.
    In 4 Martin, 385, it said, — “ The slave has no will, and cannot give consent to serve in a free State.”
    In 11 La. Rep. 501, it appeared that the plaintiff was brought or left in Ohio, by the person claiming to be owner, for the purpose of serving an innkeeper until $ 150 was received for his hire, It was there -decided that the hiring of a slave for service in a free State operated on the freedom of the slave.
    ■ In 9 La. Rep. 474, the court decided, that where a slave was taken into a free State, even temporarily, for any other purpose than a mere passage through such country, such slave would become free, and that freedom once impressed was indelible.
    The case of Winney v. Whitesides, 1 Missouri, 334 — 336, formally settled the proposition that the United States had power to purchase the Northwest Territory. It treats the Or* dijiance as a compact (“ assented to the articles of cSmpact ”), and as in full force (p. 335), and says (p. 336), — “ The sovereign power of the United States has declared- that neither slavery nor involuntary servitude shall exist there,, and this court -thinks that the person who takes his slave into said Territory, and by the length of his residence there indicates an intention of making that place Ms residence,, and that of his slave, does by such residence declare his slave to have become a free man.”
    The case of Lagrange v. Choteau, 2 Missouri «-Rep., decides that any sort of residence, continued or permitted by the legal owner, to defeat or evade the Ordinance, and. thereby introduce slavery de facto, would doubtless entitle a slave to freedom. This case also says the Ordinance was intended as fundamental law.
    The case of Ralph v. Duncan, 3 Missouri, 140, says, — “ The object o'f the Ordinance of 1787 was to proMbit the introduction of slaves into the Territory, of which the present State of Elinois constitutes a part, and the master who permits his sla^e to go there to hire himself offends against that law as much as one who takes his slave along with himself to reside there,, and if we áre át liberty to regard the moral effect of the act, it is much more to permit the slave to go there to hire himself to labor, than for the master to take him along with himself to -reside,” &c.. 3 Martin, N. S. 699.
    In the case of Julia u. McKinney, 3 Missouri, 196, the court said, — “ Here was a hiring óf a person bound to labor in Ken-tacky, Whilst in Kentucky, biought into Illinois (not to reside there, say if you will), and hired to labor for one or. two days l)y the owner. What difference can it make if the hiring had been for one hundred days ? We can see none, except in the degree or quantity of time.”
    The court is referred also to Stewart v. Oakes, 5 Harr. & Johns. 107, note; also to 3 Harr. & Johns. 491, 493 ; 3 Mon. 104; 5 Littell, 285; 1 Va. Rep. by Gilmer, 143; and many other cásas might be cited from the decisions of the courts of last Tesorfc in.the States where slavery exists, to show that the principles contained in the cases cited are generally recognized.
    In all these cases, it is believed the length of residence was considered immaterial. The fact that the slave was taken or permitted to reside, or hired, or sent to labor, where slavery was forbidden, determined the right to freedom.
    The grand object and settled policy of the Ordinance would be .evaded and defeated, if citizens of Ohio or Indiana could hire slaves in Virginia and. Kentucky to cultivate their farms. If they could thus hire for a day, or a month, or a year, they could do so for any number of years. It would be no answer to say the master resided in a slave State, contracted in a slave State, and never intended to change the permanent residence of his slave.
    The proposition is maintained, that if a master voluntarily hire his slave tó a citizen of a non-slaveholding State, to perform service and labor in such non-slaveholding State, and if he in fact send; the slave there for that purpose, the slave becomes free.
    There is no principle of comity which requires any sovereignty t' surrender the interest of its citizens, or its established laws, or its settled policy, in deference to or respect for any foreign law. If the non-slaveholding States, out of comity, would allow citizens of slaveholding States to cultivate their soil with their slayes, they would soon be converted into slaveholding States. If the citizens of nbn-slaveholding States could themselves introduce slaves under contracts of hire, they would violate the settled policy of their State by bringing slave labor in competition with their poor. 16 Pet. 539 ; 2 McLean, 596.
    When Connecticut passed 'her law to provide for the, eradication of slavery, she began it with a preamble which declared in concise terms the reason and policy of the law to be, “ that slavery is inconvenient and injurious to the poor.”
    ' The defendant in error, by express written authority, gave Williams authority to take the slaves to Indiana and to Ohio, to serve him, Williams, in those States. This was done upon a consideration yrhich the master deemed adequate? Under that express written authority of. the master, they were so taken, again and again, to those 'States, to perform service for pay.- Now this either did or did not make them free. If it did make them free, it was either by virtue of the Ordinance, or of the Constitution or laws of the United States admitting those. States under that Ordinance’with constitutions prohibiting- slavery. The defence of Strader, &c., turned on the giving, or refusing to give, validity to the Ordinance or acts of Congress. A State court has decided against that defence, — and this is claimed to be one of the very cases in which jurisdiction is given to this court under the ‘twenty-fifth section of the Judiciary Act. Pollard v. Kibbe, 14 Pet. 417.

      Mr. Crittenden, contra.

    Much argument has been urged to show, that, in regard to the operation of the Ordinance of 1787 and the laws of Ohio and Indiana upon the condition of slaves brought into those States with the consent of their masters, there is no difference between a temporary and a permanent residence. But in this case there was no residence at all. It was only a transient visit to Madison for part of one night, and for a fleeting and temporary purpose. Williams’s residence was in Louisville. There was no change of domicile, nor was there the most remote intention of such change. The slaves accompanied Williams in his- short visit, and voluntarily returned with him to Kentucky; and it was not till some four years after their return to their master that they made their escape. A distinction is attempted between a temporary residence and a visit in transitu. There is no foundation for such a distinction. The only legal distinction is that of domicile and transient residence, or stoppage in itinere.

    But the important fact in this case is the voluntary return of the slave to his master. The question, then, is, What is the condition of the slave on his return, by the laws of Kentucky ? not what was his Condition by the laws of Indiana or Ohio, when within the limits of those States. This is a question purely of local law, to be decided by the local courts. The laws of Kentucky could alone determine the status or condition of persons residing within the State, and the courts of the State were the appropriate expounders of those laws This court has, consequently, no jurisdiction to reverse or review the decision of the Court of Appeals in this case. It does not arise under any'act of Congress. . It does, not arise even under the Ordinance of 1787. If the slaves had sued for their freedom, it might have been brought under the Ordinance. It is simply a case arising under the statute law of Kentucky. Owens v. Norwood’s Lessee, 5 Cranch, 344.

      What have the Supreme Court of Kentucky decided ? They have decided that there was no, residence, that there was a temporary visit for a temporary purpose; and that such a visit, followed by a voluntary return to their master; gave no title to freedom under the Ordinance of 1787. The Ordinance of 1787 declares that there shall be no involuntary servitude northwest of the Ohio. It says nothing of the effect of a mere temporary sojourn of a slave in that Territory with the consent of. his master, and a voluntary return to the State from which he came.- The Ordinance was founded in wise counsels, for large purposes, and has been faithfully kept. It was not to catch up a wandering fiddler,' as in this case, upon a mere visit for playing at a ball, that the Ordinance of 1787 was passed. If degrades the character of that Ordinance to suppose so. It would give to it the effect of creating a border warfare, instead of cultivating the courtesies and amenities;of life.
    If, however, that decree be examinable in this court, it will be. further insisted, —
    1st. That under the circumstances of this case, the transient excursion of the slaves in question to Cincinnati, for a tempoxary purpose, with intention to return, and within their actual obligations to the service of their master, conferred no right to freedom after such voluntary return, either under the Ordinance, or under thfe Constitution or laws of the United States.
    Judge Story, in his Conflict of Haws, § 96, on the question .of a voluntary return to. slavery, considers the law to .be that the Blave acquires no right to freedom. In the case of the Commonwealth of Massachusetts v. Aves, 18 Pick. 193, the court in Massachusetts decide that a slave who has been in a free State, but returns voluntarily to the State from which he eatne* returns to the condition in which he was when he left. He waives his right to freedom by his voluntary return. And so did Sir William Scott decide, in 2 Haggard’s Admiralty Reports, 94. And the court of Kentucky decide the same thing.
    3d. That the plain 'ffs in error have no right thus collaterally to make any defent or question as to the claims of those slaves to their freedom, claims which they themselves had apparently abandoned, and which they certainly never asserted.. Their right, if any, was personal, and cannot be revived and brought into litigation, as attempted in this case by the plaintiffs in. error.
    I suppose it is very clear that the only question here is, whether this decision conflicts with the Ordinance of 1787. It may conflict with the law of Ohio, or Indiana, or the constitution of Ohio.or.Indiana; but that confers no jurisdiction on this court.

      If the doctrine maintained on the other side be established, the Ohio will be made ¡like the fabled Styx, the river of death* which, if once crossed, can never be recrossed. It will destroy that amenity of intercourse, that interchange of social courtesies, which now exist, and which do so much to preserve those kindly and fraternal feelings upon'which the success of our institutions so much depends. He trusted in the wisdom of the court to arrive at such a decision as should be acquiesced in by all.

      Mr. Jones, in reply and conclusion.
    The defence is, that these slaves having once had the indelible character of freedom stamped on them by a residence, sojourn, or commorancy .within the íerritory over which the Ordinance of 1787 extended, it could never afterwards be obliterated.
    The penalty Or forfeiture is ior transporting slaves, and it i$ a necessary prerequisite that the status oi slavery should be established.
    Suppose a slave emancipated, and I am indicted' for dealing with him, a slave, can I not set up a defence that the condition of slavery did not exist under the Ordinance of 1787? And did not the court of Kentucky in this case decide upon the effect of the Ordinance of 17.87 ?
    It is agreed'that this case arises under the laws of Kentucky. But Kentucky could not pass laws inconsistent with the Ordinance. They cannot make a slave of one whom the Ordinance makes free. All that Kentucky has done has been to apply the penalty to the asportation of slaves. The question, then, is, Bond or free ?
    It is decided as to the condition of slavery in those States where it is not recognized, that there is no obligation under common law, in the national law, or the comity of nations, to recognize it where the slave is brought into' such State voluntarily. Then, as to the permanence of the removal, all the authorities concur, that no matter how temporary the purpose, if the slave be brought or sent by the master for ever so short a time, once there, eo instanti he becomes free. Some State courts have distinguished between slaves temporarily employed and slaves in transitu.

      . This is illustrated by the acts of coterminous slave States. Maryland and Virginia- were obliged to pass laws to prevent freedom from resulting from a temporary residence.
    What is the difference between temporary and permanent residence ? Animus morandi and animus revertendi.

    Tiie oniy true distinction is between domicile, on the one ' hand, and mere residence, whether for a short or for a long time, on the other. Various words have been applied to express the idea, such as sojourning, commorancy, residence, &c. Many persons pass, their whole lives in a strange land. The Israelites sojourned in Egypt for four hundred years; yet it was not their home. It is true that in the case in 2 Martin, the slave was removed into Indiana for a permanent residence, and the court seem to indicate a distinction between a permanent arid temporary residence; but it was only incidentally laid down, and has been overruled in Louisiana since. In the case in 18 Pickering, the slave was a mere attendant in Hiñere, and the decision was, that even that conferred freedom. In fact, the States o£ Kentucky, Louisiana, and Missouri concur (with the exception of persons in Hiñere) with the courts of the Northern States as to the effect of residence. And the length of residence was immaterial. There are two cases in Louisiana where slaves were taken to France and brought back again, which entirely abolish all distinction between one sort of resi.dence and another.
    The case of the slave Grace has been referred to, where the right to freedom, which might have been asserted, was considered as waived by a retain to the place of slavery. But does that construction of law as existing in England apply here ? It is a monstrosity in morals and in law, that a man who has been, made free by the operation of law can make himself a slave. On the coming of the slave into the free State, by the mere force of the prohibition, his shackles fall from him. Are they ever to be restored? By what law? If he be free in Ohio and Indiana, how shall he be a slave elsewhere ? What power of man is to redintegrate that condition ? Nor is there any real distinction as to right of dominion and right of property. If the slave be made free, there can be no right of property in his service. Where is the law which makes a distinction •between the right of property quoad the State, and an absolute divestiture of all right of property by operating on the status of slavery ? It cannot be said that the slave is free, arid yet that my right of property remains intact.
   Mr. Chief Justice TANEY

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.

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 Pike, at Louisville, without his knowledge or consent, and transported to Cincinnati; and from that pláee escaped .to Canada, and were finally lost to- him.

The proceedings before us were instituted .under a statute of Kentucky, in the Louisville Chanoery Court, ágainst 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 slave's;, 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 thesé 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 thiá •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 thát hé 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 -yvhen 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 df 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 pf Kentucky upon this subject. 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 continued to be slaves. ' AncLtheir judgment upon this point is, upon this writ of enror, 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 dr 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 for ever remain unalterable upless 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, dor 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.

The case of Permoli v. The First Municipality, 3 How. 589, depénded upon the same principles with the case before us. It is true that the question in that case arose in Louisiana. But the act of Congress of April 7, 1798, chap. 28 (1 Stat. at Large, 549), extended the Ordinance of 1787 to the then Territory of . Mississippi, with the exception of the antislavery 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, chap. 23 (2 Stat. 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 Ordinancé 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 govern-ment; 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 gbvernment. And when it is decided that this Or- . dinance 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 in-, consistent with the presept. Constitution. And if they could be regarded as yet in operation in the States formed within the limits of the Northwestern Territory, , it would place them in an inferior condition as compared with the other States, and subject their domestic institutions and municipal regulations to the constant supervision and control of this court. The Constitution was, in the language of the Ordinance, “ adopted by common consent,” and the people of the Territories must necessarily be regarded as parties to it, and bound by it, and entitled to its benefits, as well as tbq people of the then existing States. It became the supreme law throughout the United States. And so far as any obligations of good faith had been previously incurred by the Ordinance, they were faithfully carried into execution by the power and authority of the new government.

In fact', when the Constitution was adopted, the settlement of that vast territory was hardly begun ; and the people Who filled it,, and formed the great and populous States that now cover it, becáme inhabitants of the territory after the Constitution was adopted ; and migrated upon the faith that its protection and benefits would be extended to them, and that they would, in due time, according to its provisions and spirit, be admitted into the Union upon an equal footing with the old States. For the new government secured to them all the public rights óf navigation and commerce which the Ordinance did or could provide for; and moreover extended to them when they should become States • much greater power over their municipal regulations and domestic concerns than the Confederation had agreed to concede.. The six articles, said to be perpetual as .a compact, are, not made a part of the new Constitution. They certainly are not superior and paramount to the Constitution, and cannot confer power and jurisdiction upon this court. The whole judicial authority of- the courts of the United States is derived from the. Constitution itself, and the laws made under it.

It is undoubtedly true, that most of the material provisions and principles of these six articles, not inconsistent with the .Constitution of- the United States, have been, the established law within this territory ever since the Ordinance was passed;- and hence the Ordinance-itself is sometimes spoken of as still in force. But these provisions owed their legal validity, and force, after the Constitution w.as adopted and while the territorial. government continued, to the act of Congress of August 7-, 1789, which adopted and continued the Ordinance of 1787, and earried its provisions into execution, Xvith some modifications, which were necessary, to ádapt its form of government'tp the new Constitution. .And in the States since formed in the territory,, thesé. provisions, so far as they have been preserved, owe their v'alidity .and. authority to the Constitution of the United States,' and the constitutions and laws of the respective States, and not to the authority of the Ordinance of the old Confederation. As we have already said, it ceased to be in force upon the adoption of the Constitution, and cannot now be the source of jurisdiction of any description in this court.

In every view of the subject, therefore, this court has no jurisdiction of the case, and the writ of error must on that ground be dismissed.

Mr. Justice McLEAN.

I agree that theré is no jurisdiction in this case, and that it must be dismissed.

The plaintiffs obtained this writ of error to reverse a judgment of the Court of Appeals of Kentucky, which affirmed the judgment of the inferior court, in which Graham obtained a verdict and judgment against the defendants below for three thousand dollars, on the ground that three of the servants of the plaintiff had been conveyed from Louisville, Kentucky, to Cincinnati, in the steamboat of defendants, by which means they escaped, and-the plaintiff lost their services.

The defendants set up in their defence the Ordinance of 1787; for the government of the Northwestern Territory, which prohibited slavery in the sixth article of the compact, and which was declared tp be unalterable unless by common consent.” The defendants alleged that, with the permission of Graham, the slaves had been permitted to visit Ohio and Indiana as musicians, by which they were entitled to their freedom ; although they had returned voluntarily to their master, in Kentucky. And the right to their freedom was asserted under the Ordinance, which, it is insisted, brings the case within the twenty-fifth section of the Judiciary Act of 1789, and gives jurisdiction to this court.

The provision of the Ordinance in regard to slavery was incorporated into the constitution of Ohio, which received the sanction of Congress when the State was admitted into the Union. The constitution of the State, having thus received the consent of the original parties to the compact, must be considered, in regard to the prohibition of slavery, as substituted for the Ordinance, and consequently all questions of freedom must arise under the constitution, and not under the Ordinance.

This, in my judgment, decides the question of jurisdiction, which is the only question before us. And any thing that is said jn the opinion of the court, in relation to the Ordinance, beyond this, is not in the ease, and is, consequently, extrajudicial.

Mr. Justice CATRON.

The Ordinance of 1787 provides that the six articles contained in it shall be unalterable, and remain a compact between the original States and the people of the Northwestern Territory, “ unless altered by common consent.”

1. The sixth article declares, that slavery shall b,e prohibited. 2. And that absconding slaves there found shall be surrendered to their owners.

The constitution of Ohio incorporates the. first part of the sixth article, but leaves out the second part. The State constitution having received the sanction'of Congress, the alteration was made by common consent, as this was the mode of -consent contemplated by the compact; that is to say, by the States in Congress assembled, whether under the Confederation or present Constitution. This being an “ engagement entered into ” before the adoption of the Constitution, was equally binding on the onh Congress ás the other, according to the sixth article of the new Constitution; and the new Congress, equally with the former one* had power to consent to alterations. The power to alter necessarily involves the power to annul, orto suspend; and when the State constitution of Ohio was assented to by Congress, the article stood suspended, or abolished, as an engagement among the States, andean now only be recognized as part of the organic State law. And as this law is drawn in question "here, no jurisdiction exists to examine the State decision.

But in regard to parts of the other five articles, I am unwilling to express any opinion, as no part of either is in any degree involved in this controversy.

The fourth article secured the free navigation of the waters leading into the rivers Mississippi and St. Lawrence, and the carrying-places between them, as common highways; and exempted them'from tax, impost, or duty. The mouths.of the. two great rivers were in possession of foreign powers, and closed to our commerce, at the date of the Ordinance and Constitution; and therefore it was more necessary that the tributaries should be always open, and the can-ying-places free, so that the Ohio' and St. Lawrence could be reached from the great lakes, and -back and forth either way. Some of these tributary rivers and the carrying-places, it was known, would fall into a- single new State, as contemplated by the Ordinance. This is true .of every carrying-place, and is equally true as respects most of the fivers leading to the carrying-places: and as Congress had only power given by the new Constitution “ to regulate commerce among the States,” it is a question now unsettled, whether such inland rivers and carrying-places could be regulated, where the navigation and carrying-places began and ended in a single State;

For thirty years, the State courts within the territory ceded by Virginia have held this part of the fourth article to be in force, and binding on them respectively; and I feel unwilling to disturb this¡ wholesome course of decision, which is so conservative to the, rights of others, in a case where the fourth article is in no wise involved, and when our opinion-.might be disregarded by the State courts as obiter, and a- dictum uncalled for. When the question arises here on the fourth article, it is desired by me, that no such embarrassment should be imposed on this court as necessarily must be by now passing judgment on the force of the fourth article,' and pronouncing that it stan<J superseded and annulled.

Orderl

This cause came on to be heard on the transcript of the record from the Court of Appeals for the State of Kentucky, and was argued by counsel. ■ On consideration whereof, it is now here ordered and adjudged by this court, that this cause be, ancf the same is hereby, dismissed for the want of jurisdiction.


source: Caselaw Access Project

author: Mr. Chief Justice TANEY

license: Public Domain

text:
    James G. Wilson, Appellant, v. George A. Sandford and Robert G. Musgrove.
    The seventeenth section of the act of 1836 gives the right of appeal to this court, when the sum in dispute is below the value of two thousand dollars, “ in all actions, suits, controversies on cases arising under any law of the United. States, granting or confirming to inventors the exclusive right to their inventions or discoveries,” provided the court below shall deem it reasonable to allow the appeal.
    But a bill filed on the equity side of the Circuit Court to set-aside an assignment, ’ upon the ground that the assignee had not complied with the terms of the contract, is not one of these enumerated cases; and the value in dispute being less than two thousand dollars, this court has no jurisdiction over the case.
    This was an appeal frpm the Circuit Court of the United States for the District of Louisiana.
    The appellant had filed his bill in the court below, setting forth a patent to William Woodworth, dated December 27th, 1828, for a planing machine ; .also an extension,, in. 1842, of said patent for seven years, granted to William W. Woodworth, administrator of the patentee ; an assignment of all right and interest in said extended patent throughout the United States (except Vermont) to complainant, Wilson; and a license from Wilson to the defendants to use one machine upon payment of $ 1,400, as follows, viz. $ 250 .in cash, and the remainder in nine, twelve, eighteen, and twenty-foiir months, for which promissory notes were given, dated 23d April, 1845, one for ¡§ 150, and four for $ 250 each.
    The license was made an exhibit in the case, which, after setting forth the consideration of $ 1,400 above mentioned, and the promissory notes for part thereof, contained the follow-lowing provision: — “ And if said notes, of either of them, be not punctually paid upon the maturity thereof, then all and singular the rights hereby granted are to revert to the said Wilson, who shall be reinvested in 'the same 'manner as if this license had not been made.”
    . The first two of said notes were not paid when they fell due, payment having been demanded and refused before the filing •of the bill. The bill further insisted, that the license was forfeited by the failure to pay the notes, and that the licensor was fully reinvested at law, and in equity, with all his original rights. That the defendants, nevertheless, were using the machine, and thus were infringing .the patent. Prayer for an injunction, pendente lite, for an account of profits since the forfeiture of the license, for a perpetual injunction, for a reinvestiture of title in'-complainant, and for other and further relief.
    The defendants demurred to the whole bill, and also (saving their demurrer) answered the whole bill. They admitted all the facts alleged; and averred, on their part, that the contract set forth in the bill had been modified and varied by a new contract, which the complainant had broken, and that the respondent, being in the lawful use of a planing-machine at the expiration of the patent, had'the right to use such machine without license, apd consequently that the ¿otes were without consideration.
    There was a general’ replication, and the cause was heard first on bill and demurrer, and afterwards (the demurrer having been overruled) on bill, answer, and replication. Whereupon the bill was dismissed, with costs, and an appeal to this .court taken.
    The cause was argued by Mr. Seward, for the appellant, no counsel appearing for the appellees.
    As, however, the appeal was dismissed for want of jurisdiction, the argument of Mr. Seward, which was wholly upon the merits, is not inserted.
   Mr. Chief Justice TANEY

delivered the opinion of the court.

The. bill in this case was filed by the appellant aghinst the appellees in the Circuit Court of the United States for the, District of Louisiana.

The object of the bill was to set aside á contract made by the appellant with the appellees, by-which he had granted them permission to use, or vend to others to be used, one. of Woodworth’s planing-machines, in the cities of. New Orleans and Lafayette; and also to obtain an injunction against the further use of the machine, upon the ground that it was an infringement of his patent rights. The appellant states thát he was the assignee of the monopoly in that district of country, and that the contract which he had made with -the appellees had been forfeited by their refusal to comply with its conditions. The license in question was sold for fourteen hundred dollars, a part of which, the bill admits, had been paid. The contract is exhibited with the bill, but it is not necessary-in this opinion to set out more, particularly its provisions.

The appellees derqurred to the bill, and at the final hearing the demurrer was sustained, and the bill dismissed. And the case is brought here by an appeal from that decree.

The matter in controversy between'the parties arises upon this contract, and it does not appear that the sum in dispute exceeds two thousand dollars. On the contrary, the. bill and contract exhibited With it show that it is below that sum. An appeal, therefore, cannot be taken from the; decree of thé Circuit Court, unless it is authorized by the last clause in the seventeenth section of the act of 1836.

The section referred to, after giving the right to a writ of error or appeal in cases arising under that law, in the. same manner and under the same circumstances as provided by law in other cases, adds the following provision: — “ And in all other cases in which the court shall deem it reasonable to allow the same.” The words “in all other cases” evidently refer to .the description of cases provided for in thát section, and where the ' matter in dispute is below two thousand dollars. In such suits, no appeal could be allowed, but for this provision.

Thé cases specified in the section in question are, “ all actions, suits, controversies on cases arising under any laW bf the United States, granting or confirming to inventors the exclusive right to their inventions or discoveries.” The right of appeal to this court is confined to cases, of this description, when the sum in'dispute is belo.w two thousand dollars. And the peculiar privilege given to this, class of cases was intended to secure uniformity of decision in the construction’ of the act. of Congress in relation to patents.

Now the dispute in' this case does not arise under any act of Congress; nor' does the decision depend upon the construction of any law in relation to patents. It arises out of the contract stated in the bill-; and there is no act of Congress providing for or regulating contracts of this kind. The rights of the parties depend altogether upon common law and equity-principles. The object of the bill is to have this contract set aside and declared to be forfeited; and the prayer is, “ that the appellant’s reinvestiture. of title, to the license granted to the appellees, by reason of the forfeiture of the' contract, may be sanctioned by the court,” and for an injunction. But the injunction he asks for is to be the consequencé of the decree of the court sanctioning the forfeiture. He alleges no ground for an injunction unless the contract is set aside. And if the case made in the bill was a fit one for relief in equity, it is very clear that whether the contract ought to be declared forfeited or not, in a court of chancery, depended altogether upon the rules and principles of equity, and in no degree' whatever upon any act of Congress concerning patent rights. And whenever a contract is made in relation to them, which is not provided for and regulated by Congress, the parties, if any dispute aqises, stand upon the same ground with other litigants as to the right of appeal; and the decree of the Circuit Court cannot be revised here, unless the matter in dispute exceeds two thousand dollars.

This appeal; therefore, must be dismissed for want of jurisdiction.

Order.

This cause came on to be. heard on the transcript of the record from the Circuit Court of the United States for .the District of Louisiana, and was argued by counsel; on consideration. whereof, it is now here ordered, adjudged, and decreed by this court, that this cause be, and the same is hereby, dismissed for the .want of jurisdiction.


author: Mr. Justice McLEAN

text:
    Alfred C. Downs, Plaintiff in error, v. Joseph Kissam.
    Where the Circuit Court instructed the jury, “ that, if any one of the mortgages; giv- - en in evidence conveyed more property than would be sufficient to secure the'debt provided for in the mortgage, it was a circumstance- from'-which the jury might presume fraud,” this instruction was erroneous.
    Any creditor may pay the mortgage debt and proceed against the property; or he may subject'it to the payment of his debt by other modes of proceeding.
    In error to the Circuit; Court of the United States for the Southern District of Mississippi.
    A writ of fieri facias issued on the. 5th of January, 1842, 'from the Circuit Court of the United States for the Southern .District of Mississippi, at the instance of Joseph Kissam (the defendant in error), against one James J. Chewning, for ¡$2,336.22, besides costs, and was levied by the marshal, April 14th, 1842, on negro slaves Nancy and her child, Milley and her child, Viney and her child, Tempey and her child, Mary, Louisa, Juliana, and Charlotte, as the property of the said Chewning; and these negroes were claimed by the plaintiff in error as his property. And thereupon the defendant in error, by plea, averred in the said Circuit Court, that the said slaves, at the time, &c., were the property of the said Chewning, and upon this plea issue was tendered and joined between the defendant in error and the plaintiff in error. This issue was tried at November term, 1846, when a verdict passed for the defendant in error as tó all the slaves except Juliana, and a bill of exceptions was tendered by the plaintiff in error; and upon the judgment rendered upon the verdict, this writ of error is brought.
    From the bill of exceptions, the case appears to have been this.
    On the trial of the issue, the defendant in error produced the-deposition of the said Chewning, taken by consent of parties. On his examination, the counsel for the plaintiff in error exhibited to the. witness a mortgage, marked A, made by him to the Commercial and Railroad' Bank of Vicksburg, dated 31st December, 1839; and in answer to questions proposed by said counsel, he deposed that he executed the mortgage on the day of its date; that he then owed- the bank $ 130,000, &c. j^that all the slaves seized under the execution were embraced in the mortgage except Juliana. The counsel also exhibited to the witness, mortgages made by him, as follows:' one to William M. Beal, dated 7th March, 1842, and marked B; one to James Cuddy, , dated 13th July, 1840, and marked C; one to F. Sims, dated 13th July, 1840, and marked D; one to the plaintiff in error, dated 8th September, 1841, and marked E; and witness deposed to the execution of the same at the times of their respective dates ; that some of the slaves in controversy were embraced in each of the said mortgages, and in that to the plaintiff in error,'all except Juliana; that he was indebted to the mortgagees respectively in the sums mentioned in the instruments; that all the slaves in controversy, except Juliana, were on December 31st,1839, in Carroll Parish, Louisiana, an'd so remained until removed by the witness into Mississippi, in March, 1842, in consequénce of his having sold his lands in Louisiana.
    . The mortgages were referred to in, and accompanied, the deposition. • Exhibit A recited a debt evidenced by a promissory note bearing even date with the mortgage for .$> 130,000, to be paid (as provided in the mortgage) in yearly instalments, one of $ 500, and nine of $ 13,888.88, besides accruing interest.
    Exhibit B recited a- debt of $ 7,470.60, contracted in January preceding.
    Exhibit C recited a debt of $1,200, evidenced by notes bearing even date with the mortgage.
    Exhibit D recited a debt of $ 4,871.92, evidenced by a note dated four days preceding.
    Exhibit E was made to indemnify plaintiff in error as surety of Chewning, on an administration bond in the penal sum of $ 50,000, and also to secure two debts, in amount $ 6,000.
    On the trial, the defendant in error, having read to the jury the whole examination of the witnesses excepting said exhibits, refused to read them to the jury; whereupon the counsel for the plaintiff in error moved the court to exclude the whole deposition, which motion was overruled, and the counsel excepted.
    The said counsel then read to the jury the said exhibits, as evidence for the plaintiff in error, and produced the note for $ 130,000 recited in Exhibit' A, which was admitted to be in. the handwriting of Chewning.
    And the court, on the prayer of the defendant in error, gave the following instructions to the jury: —
    . 1st. If the jury find that any one of the mortgages conveys more property than would be sufficient to secure the debt provided for in such mortgage, such mortgage is fraudulent; that is, the fact of more property being conveyed in the mortgage than was necessary to secure the debt is a circumstance from which the jury may presume the mortgage was fraudulent.
    2d. If a mortgage is made to cover more property than is sufficient to pay the debt intended to be secured, for the purpose of preventing other creditors from levying, it is fraudulent and void, though the debt intended to.be secured be bond fide} that is, the fact of more property being conveyed than was necessary to secure the debt is á circumstance from which the jury may infer fraud. .
    3d. If the jury believe that the -object of Ghewning was to hinder, delay, or defraud his bond fide creditors by the. execution of the mortgages, then the mortgages are void, and the jury, should find for the plaintiff in the execution'-; but, in coming to your conclusion on this subject,-you must recollect that Chewning, the defendant in the execution., was authorized to prefer one of his creditors to. another, provided his object only was to enable such creditor to collect his debt; he had no right, in enabling one creditor to collect.his debt, to give him control of an amount- of property much larger than was ’ necessary to pay thé debt.
    To which instructions the plaintiff in error excepted.
    The case was argued by Mr. Crittenden, Attorney-General, and Mr. Lawrence, for the plaintiff in error, and by Mr. Iiey, for the defendant in error.
    On the part 'of the plaintiff in error, it was insisted, that the court below erred in not requiring the defendant in error to read the mortgages referred to in, and forming part of, the deposition of Chewning. If it was competent for the defendant in er,ror to decline reading the interrogatories put to the witness by the plaintiff in- error, and compel the plaintiff in error to read them and the answers himself, yet, having read the interrogatories and the answers referring to the mortgages, he was bound also to read the mortgages as forming part of the answers; unless a party is at liberty to'read part.of an answer to a question, and refuse to read the residue, both parts being pertinent and admissible evidence; which it is submitted cannot be done.
    As to the instructions given to the jury, it was insisted, —
    1st. That the three instructions were altogether erroneous, because there was no evidence in the cause tending in law to show-that the property mortgaged was more than sufficient to secure the debt specified in any one of the mortgages, md therefore the question as to the value of the property in comparison with the amount of the debts could' not be rightfully submitted to the-jury; and also because there was no evidence .that before or at the time of making the mortgage of 31st December, 1839 (Exhibit A), Chewning owed any debt besides that secured by that mortgage.

      2d. That the position assumed in the- first instruction, to wit, if any one of the mortgages conveyed more property than sufficient to secure the debt, the jury might presume the mortgage fraudulent, is not law, either as a general proposition or as applied to this case. For first, it assumes that any excess of value, however small, raises a presumption of fraud; which is not in any case true, it being always necessary that there be a gross or large excess, not to ,be accounted for by the just care of a prudent man, to guard against all probable contingencies. Again, it does not distinguish between general or particular assignments by the debtor for creditors, and a mortgage to a particular creditor, or a deed of assignment to which a creditor is a party for securing his debt; the rule as to excess, if applying at all in the terms used by the judge, only applying to the former, and not to the latter classes of securities. Thirdly, it does not distinguish between a mortgage voluntarily ' made for securing a preexisting debt contracted upon the faith of the debtor’s personal ability only, and a mortgage taken at the time of making a debt, as part of the security originally contracted for, the note or bond bearing even daté with the mortgage, and forming with it one assurance, or a mortgage given for a preexisting debt upon some new consideration moving from the creditor, to which the position assumed in the instruction has no application.
    And in support of these objections it was argued, that every mortgagee is a purchaser of the thing mortgaged so far as his interest extends; that he has a. right to stipulate for any amount of property to be mortgaged; just as he may demand any number of personal sureties, and no inference against his honesty arises from the one more than from the other; and if this is not true of every mortgage, it is at least true where the mortgage is taken simultaneously with the advance of money or othér creation of the debt as part of the- contract; and also where, for a former debt, a mortgage is taken upon a new consideration, as, for example, giving further credit, surrendering other securities, &c., to which cases- the rule laid down by the judge doés not apply.
    The following authorities were relied upon:— Roberts on Fraud, ch. 4, sec. 1, particularly pages 371 to 375, and sec. 2, page 429 to the end; Wheaton v. Sexton, 4 Wheat. 503; Freeman v. Lewis, 5 Iredell, 91; Wright v. Stanard, 2 Brock. 311; Fullenwider v. Roberts, 4 Dev. & Bat. 278; Goss v. Neale, 5 Moore, 19; Pickstock v. Lyster, 3 M. & S. 371; Benton v. Thornhill, 2 Marsh. 427; 7 Tenn. 149; Dewey v. Baynton, 6 East, 257; Holdbird v. Anderson, 5 T. R. 235; Riches v. Evans, 38 E. C. L. 268 (9 C. & P. 640).
    3d. As to the second instruction, it was insisted, that it is erroneous for the reasons given as to the first; and also because it assumes that an intent to prevent other creditors from levying is per se fraudulent; whereas thatgs not true, unless that be the only or at least the primary intent. And if the object is to give or acquire a priority for a just debt, and thereby prevent other creditors from levying, or to defeat one creditor in order to prefer another, there is in law no fraudulent intent, the object being wholly lawful. The above-cited authorities were relied upon, and particularly Holdbird v. Anderson, Pickstock v. Lyster, Goss v. Neale, Benton v. Thornhill, and Riches v. Evans; and also Marbury v. Brooks, 7 Wheat. 566.
    4th. It was insisted, that the third instruction is erroneous, because it makes tb'e validity of .the mortgages depend solely upon the intent of Chewning, without reference to the knowledge or purpose of the mortgagees; whereas, all the mortgagees being purchasers, and two of them purchasers in the strict sense of the mortgage, as a security taken simultaneously with the creation of the debt, are not affected by the intent of the mortgagor, unless known to and approved or aided by them. And also because the instruction rescinds the mortgages, if it was any part of Chewning’s purpose to hinder or delay other creditors, although his chief purpose had been to prefer the mortgagees; and the hindering or delaying others was only a subordinate purpose as necessary to accomplish the leading or chief design.
    The above authorities were relied on, and particularly Wheaton v. Sexton; and also the'following:— Magniac v. Thompson, 7 Peters, 348; Harrison v. Trustees of Phillips Academy, 12 Mass. 456; Bright v. Eggleston, 14 Mass. 245; Kittredge v. Sumner, 11 Pick. 50; Foster v. Hall, 12 Pick. 89.

      Mr. Key, for the defendant in error.
    The points -presented are, first, that the court below erred in not excluding certain evidence; and, secondly, that the court below-erred in its instructions to the jury.
    1. The evidence which it is thought should have been excluded is the deposition of J. J. Chewning.
    The ground upon which this exclusion is contended for is, that the plaintiff below read to the jury only a portion of said deposition, arid refused to read the exhibits A, B, C, D, and E. It will be perceived that the deposition was not ex parte; it was taken by consent, “ to be read in behalf of the parties, plaintiff and defendant.” It was competent, therefore, for either party to read portions of said deposition. The entire deposition was read to the jury, all the interrogatories, and the exhibits. So, if there was error in not compelling the plaintiff below to read su,ch exhibits, such error was cured when the said exhibits were permitted to be read to the jury in behalf of the defendant.
    2. It is thought the principles of law applicable to the case, and contained in the three instructions of the court below, are erroneous.
    It is contended for the defendant.in error, that said instructions are correct in law, and the following authorities are referred to. 4 Kent’s Comm. 160; 2 Ib. 512 to 536; Powell on Mortgages, 79 et seq.; Hamilton v. Russel, 1 Cranch, 309; Edwards v. Harben, 3 Term Rep. 587; Ryall v. Rowles, 1 Ves. 348; Worseley v. De Mattos and Slader, 1 Burr. 467; Alexander v. Deneal, 2 Munf. 341; Clow v. Woods, 5 Serg. & Rawle, 275; Sturtevant v. Ballard, 5 Johns. 337; Crowninshield v. Kittridge, 7 Met. 520.
   Mr. Justice McLEAN

delivered the opinion of the court.

This writ of error brings before us the judgment of the Circuit Court, held by the District Judge for the Southern District of Mississippi.

An execution having been levied on certain slaves as the property of one James J. Chewning, at the instance of the defendant in error, which slaves were claimed by the plaintiff in error, an issue was joined, under the laws of Mississippi, to try the right of property. On the trial, a mortgage was given in evidence, executed by Chewning in 1839, long prior to the levy, to secure to the Railroad Bank of Vicksburg a debt of $ 130,000. This mortgage embraced all the slaves levied on, except one. Other mortgages were given' in evidence, executed by Chewning, to secure the payment of several other debts.

Oh the trial, the Circuit Court instructed the jury, that if “any one of the mortgages conveyed more property than would be sufficient to secuve the debt provided for in the mortgage, such mortgage was fraudulent,” and that the fact of more property being conveyed as aforesaid was a circumstance from which the jury might presume fraud.

This instruction is erroneous. It is no badge of fraud for a mortgage, which is a mere security, to cover more property than will secure the debt due. Any creditor may pay the mortgage debt, and proceed against the property; or he may subject it to the payment of his debt, by other modes of proceeding.

The judgment of the Circuit Court is reversed, and a venire de novo awarded.

Order.

This cause came on to be heard on the transcript of the record from the Circuit Court of the United States for the Southern District of Mississippi, and was argued by counsel. On consideration whereof, it is now here ordered and adjudged by this court, that the judgment of the said Circuit Court in this cause be, and the same is hereby, reversed, with costs, and that this cause be, and the same is hereby, remanded to the said Circuit Court, with directions to award a venire facies de novo.