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CONSTITUTIONAL RESTRICTIONS.

to private persons,1 and it being also assumed that like clauses, having like effect, may be found in all these Constitutions, including the Constitution of the United States, whether the Governments organized under such Constitutions are thereby restricted either in establishing, or in abrogating, conditions either of freedom or of its contraries ; or in their power to establish, or to abrogate, relations incident to conditions of freedom or of bondage.3

§ 490. In this inquiry it is proper first to refer to whatever juridical authority3 may exist on this topic, and afterwards to AS TO STATUS OF WHITE PERSONS. 527

1 That is, written guarantees, distinguished from that indefinite restriction which may or may not exist by reason of the fact that the organized Government is not the ultimate possessor of the sovereign powers exercised by it. Ante, § 481.

* On the principle of the continuation of laws, it has already been insisted that rights and obligations, incident to relations existing under previous laws, would continue after the establishment of the new Governments, until changed by their authorized legislation. It is needless to refer to judicial action, under both the national and the State Governments, maintaining conditions of freedom and its contraries under preexisting laws. These Constitutions might however contain enacting provisions alterative of pre-existing laws. It will be shown hereinafter that in Massachusetts a declaration in the Constitution of 1780, that the enjoyment of "natural rights" is one of the ends of Government, and attributing to all persons certain rights, as natural, which are inconsistent with a condition of slavery, was taken by the courts to be a legislative abrogation of slavery. See Parsons, C. J., in 4 Mass. R. 123. In other States, whose Constitutions contain declarations very similar, the same effect has never been attributed to them. See H. St. George Tucker, President, in the Court of Appeals of Va., in Betty et al. v. Horton, (1833,) 5 Leigh's R. 622. The question here is of the personal extent of the law attributing rights, as described in the second chapter, or whether it has universal extent or not (ante, §§ 87, 88). In this connection it is a question of internal law, though it is similar to that distinction of laws of universal extent which arises in applying the rule of comity in private international law.

But such constitutional provisions as guarantee individual rights as existing rights, without attributing them to all persons, more than is done in the clause "no man shall be deprived of life, liberty or property without due process of law," have never been held to operate as a legislative abrogation of slavery or institution of freedom.

'This juridical authority may be distinguished into two portions; 1, judicial decision* of particular cases, in the determination of which the topic is supposed to be involved: 2, juristical opinion; and in this may be included legislative practice, as being an assertion of public law by persons who, from their position, must be supposed to be conversant with the subject.

And it may here be observed, that a rule or principle of law is never established by judicial action alone. This proposition may not be readily accepted, but it nevertheless appears, from the nature of the judicial function, that a decision by a judicial tribunal binds private persons only as to the rights and obligations involved in the particular case. In every science rules are derived by induction, and to this, there must be a collation and comparison of a number of otherwise unconnected instances or cases, corresponding to experiments in physics. In jurisprudence, general rules are thus obtained by juristical action. In England and America this juristical deduction takes place principally in the reported judicial opinions, and hence, in these countries it is very common to speak of a rule as depending on some decision of a case, in which this juristical action has been exhibited. In continental Europe the judges confine themselves more to a simple decision of the case before them. But the juristical de

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compare the principle, declared by any such authority, with the general principles of jurisprudence and those doctrines of public law which are received as fundamental in this country; taking them in connection with, or as they are indicated in, the history of free condition and its contraries, as it has herein before been exhibited.

§ 491. If the conditions of freedom and bondage are properly described as contraries, the legislative establishment of the one is also the abrogation of the other.

There is probably no judicial opinion on the question of the power of the ordinary legislature, under these Constitutions, to make free white persons slaves; either chattel slaves or legal persons held in involuntary servitude for life. It seems to be generally supposed that no instances have occurred of such persons being reduced to such slavery under legislative enactment. But from the summary of State legislation, to be hereinafter given,1 it will appear that under the statute law of some of the States, negroes, mulattoes and, generally, persons not of European or Caucasian race, who before enjoyed personal liberty, might be reduced to slavery. And it would appear that such laws have received judicial sanction; no question, it is believed, having been made of the power of the legislature in respect to such persons.4

§ 492. No judicial opinion earlier than that of the Supreme

duetion is completed by private writers. Hence the treatises have with them greater authority than the so-called "elementary works'' have with us. Compare the language of Ram, on Legal Judgment, p. 2, with that of Falck, Juristiche Ency. § 10, ante, p. 25, n. 2, p. 26, n. 2.

See also, on this subject, Bacon's Aphorisms, 21-31, in Advancement of Learn. B. 8, c. 3. Senator Piatt (afterwards Judge of the Supreme Court) in Yates v. Lansing, 9 Johnson, 414, "The decisions of Courts are not the law, they are only evidence of the law. And this evidence is stronger or weaker according to the number and uniformity of adjudications, the union or dissension of the Judges, the solidity of the reasons on which the decisions are founded, and the perspicuity and precision with which those reasons are expressed. The weight and authority of judicial decisions depend also on the character and temper of the times in which they are pronounced. An adjudication at a moment when turbulent passions or revolutionary frenzies prevail deserves much less respect than if it were made at a season propitious to impartial inquiry and calm deliberation."

1 And see Stroud's Sketch, 2d ed. p. 24-30.

a Whether under these statutes white persons have not sometimes been reduced to slavery may depend on the answer to the question, how is a negro, mulatto, &c., to be distinguished from a person of white, or European or Caucasian race 'I

528 SLAVEBY IN THE TERRITORIES.

Court of the United States, in Dred Scott v. Sandford, 19 Howard, 394,'appears to be on record to the effect that, if the political power and jurisdiction over the Territories, &c, is vested in the national Government,1 Congress has not the power to determine whether slavery shall or shall not exist therein, or whether a presently legal right of ownership, in a domiciled inhabitant, in respect to a negro slave shall or shall not continue; nor any which declares that such power is one not within the ordinary scope of powers belonging to such limited Governments as have existed in and for the United and several States. Nor is there any other holding that, if by the Constitution of a State, or by that of the United States operating with like effect, the right of private property or to private property is guaranteed by a declaration that no man shall be deprived of his property without due process of law, the right of a person, being a resident or domiciled inhabitant or citizen of one of these jurisdictions, in respect to a negro lawfully held by him, before and presently, as a slave or in involuntary servitude, is a right of property or to property, which under this constitutional guarantee cannot be affected by the legislative power held by the State Government, in and for a State, or by that held by Congress in and for a Territory, &c, as the case may be.

§ 493. In this case, however, it was held by the majority of the court that Congress has no power to abolish or prohibit slavery in the Territories of the United States.* And in the Opinion of the Court, delivered by Chief Justice Taney, it is held that the provisions in the Constitution, which have already

1 Whether the supreme governmental power or sovereignty, or any portion of it Is severally or separately vested in the inhabitants of such Territory, so that they are in its exercise independent of the national power as are the people of a State in their several sovereignty, is an entirely different question, one of public law, and to be considered in another place. Compare ante, §§ 348, 397.

'Mr. Justice Catron, 19 Howard, 519, reciting the words of the act of Congress of 1820, commonly called the Missouri Compromise, "That in all that territory, ceded by France to the United States, which lies north of thirty-six degrees thirty minutes north latitude, slavery and involuntary servitude shall be, and are hereby, for ever prohibited;" says, "The first question presented on this act is whether Congress had power to make such a compromise. For if power was wanting, then no freedom could be acquired by the defendant under the act." In denying the power of Congress, concurred Chief Justice Taney, Justices Wayne, Grier, Daniel, Campbell and Catron. Justices McLean and Curtis dissenting, and Mr. Justice Nelson thinking the decision of the question not necessary for the determination of the case.

DRED SCOTT V. SANDFOBD. ( 529

been referred to as having the effect of private law throughout the entire dominion of the United States, especially the clause guaranteeing to the private citizen his possession of property, "No person shall be deprived of life, liberty, or property without due process of law," apply to slaves as property, or that, in reference to such guarantee they are to be considered property, in the same degree as domestic animals and inanimate chattels. The passage in which this is enunciated, is on page 451 of the report, and in continuation of that part of the Opinion which has herein already been cited in a note to pages 463, 464 :—

"And if Congress itself cannot do this—if it is beyond the powers conferred on the Federal Government—it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.

"It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument.

"But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have re

530 OPINION OF THE COURT.

served. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.

"Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution.1 The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

"Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void."

1 Referring apparently to page 425, where it is said, in discussing the question, whether a negro may be a citizen, "The only two provisions which point to them and include them, [the reference is here to the "African race,"] treat them as property, and make it the duty of the Government to protect it; no other power, in relation to this race, is to be found in the Constitution, and as it is a Government of special, delegated powers, no authority beyond these two provisions can be constitutionally exercised. The Government of the United States had no right to interfere for any other purpose but that of protecting the rights of the owner, leaving it altogether with the several States to deal with this race, whether emancipated or not, as each State may think justice, humanity, and the interests and safety of society may require. The States evidently intended to reserve this power exclusively to themselves." The Chief Justice does not explain how, from the fact that by the Constitution the condition of negroes is left to the powers of the several States, it may follow that the chattel condition of a negro is maintained by the law which rests upon the national powers, and has national extent

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