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DRED SCOTT V. SANDFORD. 531
§ 494. Mr. Justice Wayne particularly noticed only the question of pleading, but said, on page 454 of the report, "Concurring as I do entirely in the opinion of the court as it has been written and read by the Chief Justice—without any qualification of its reasoning or its conclusions—I shall neither read nor file an opinion of my own in this case, which I prepared when I supposed it might be necessary and proper for me to do so." And at the conclusion of his remarks, page 456, said: "I have already said that the opinion of the court has my unqualified assent."
Mr. Justice Grier, on page 469 of the report, after expressing his concurrence in the opinion of Mr. Justice Nelson on the questions discussed by him, said: "I also concur with the opinion of the court as delivered by the Chief Justice, that the act of Congress of 6th March, 1820, is unconstitutional and void." It does not otherwise appear how far Judge Grier agreed in the reasoning of the Chief Justice as well as the conclusions, though there is a strong presumption that that reasoning was approved of by him.
§ 495. Justices Daniel and Campbell appear to have rested their opinions, against the constitutionality of the act of Congress, not so much on this view of the Constitution operating as private law in the Territories for the protection of individual slave owners, the doctrine of the Chief Justice, as on their views of that instrument regarded as the evidence of antecedent possession of sovereign power, or on one of those theories of State sovereignty by which the instrument, as public law, may be construed.
Both Justices appear to have thought that the legislative (juridical) power, by which the status or condition of private persons in the Territories is to be determined, is not vested in the national Government as representing the integral people of the United States. Though Judge Daniel is not so clear as is Judge Campbell in indicating by what other possessors of sovereign power such status or condition is to be determined.
§ 496. Mr. Justice Campbell speaks of the act of Congress as an infringement of rights of the States. Judge Daniel's Ian
532 SLAVERY IN THE TERRITORIES.,
guage conveys the idea that, in prohibiting slavery, it is the right of private persons, a right under private law that would be violated in the case of the immigrant slave owner; rather than the sovereign juridical right of the State from which he came which would be infringed. On page 488, Judge Daniel observes, "it has been attempted to convert this prohibitory provision of the act of 1820, not only into a weapon with which to assail the inherent, the necessarily inherent, powers of independent sovereign Governments, but into a mean of forfeiting that equality of rights and immunities which are the birthright or the donative from the Constitution of every citizen of the United States within the length and breadth of the nation. In this attempt there is asserted a power in Congress, whether from incentives of interest, ignorance, faction, partiality, or prejudice, to bestow upon a portion of the citizens of this nation that which is the common property and privilege of all; the power, in fine, of confiscation, in retribution for no offence, or, if for an offence, for that of accidental locality only."
After referring to the "territory or other property" clause, Mr. Justice Daniel, on the next page, observes: "And upon every principle of reason or necessity, this power to dispose of and to regulate the territory of the nation could be designed to extend no farther than to its preservation and appropriation to the uses of those to whom it belonged, viz. the nation. Scarcely any thing more illogical or extravagant can be imagined than the attempt to deduce from this provision in the Constitution a power to destroy or in any wise to impair the civil and political rights of the citizens of the United States, and much more so the power to establish inequalities amongst those citizens by creating privileges in one class of those citizens, and by the disfranchisement of other portions or classes, by degrading them from the position they previously occupied.
"There can exist no rational or natural connection or affinity between a pretension like this and the power vested by the Constitution in Congress with regard to the Territories; on the contrary, there is an absolute incongruity between them.
"But whatever the power vested in Congress, and whatever
MR. JUSTICE DANIEL'8 OPINION. 533
the precise subject to which that power extended, it is clear that the power related to a subject appertaining to the United States, and one to be disposed of and regulated for the benefit and under the authority of the United States. Congress was made simply the agent or trustee for the United States and could not, without a breach of trust and a fraud, appropriate the subject of the trust to any other beneficiary or cestui que trust than the United States, or to the people of the United States, upon equal grounds, legal or equitable. Congress could not appropriate that subject to any one class or portion of the people to the exclusion of others, politically and constitutionally equals; but every citizen would, if any one could claim it, have the like rights of purchase, settlement, occupation, or any other right in the national territory.
"Nothing can be more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them because they are the owners of slaves, than the fact that the same instrument which imparts to Congress its very existence, and its every function guaranties to the slaveholder the title to his property, and gives him the right to its reclamation throughout the entire extent of the nation; and, farther, that the only private property which the Constitution has specifically recognized, and has imposed it as a direct obligation both on the States and the Federal Government to protect and enforce, is the property of the master in his slave ; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar guaranty.
"Can there be imputed to the sages and patriots by whom the Constitution was framed, or can there be detected in the text of that Constitution, or in any rational construction or implication deducible therefrom, a contradiction so palpable as would exist between a pledge to the slave-holder of an equality with his fellow-citizens, and of the formal and solemn assurance for the security and enjoyment of his property, and a warrant given, as it were unofiatu, to another, to rob him of that property, or to subject him to proscription and disfranchisement for
534 SLAVERY IN THE TERRITORIES.
possessing or for endeavoring to retain it? The injustice and extravagance necessarily implied in a supposition like this, cannot be rationally imputed to the patriotic or the honest, or to those who were merely sane."
In thus speaking, in this last paragraph, of" the formal and solemn assurance for the security and enjoyment of his property," the allusion seems to be to those provisions of the Constitution which relate to rights in respect to slaves, and which were particularly referred to in the preceding paragraph. It is not clear whether Judge Daniel would agree with the Chief Justice in declaring slaves to be recognized, independently of those provisions, as property; and protected, as other property, by the fifth article of the Amendments to the Constitution operating as a bill of rights.
§ 497. Mr. Justice Campbell said, "I concur in the judgment pronounced by the Chief Justice, but the importance of the cause, the expectation and interest it has awakened, and the responsibility involved in its determination, induce me to file a separate opinion."
On page 513, Judge Campbell observes that "the advocates for Government sovereignty in the Territories have been compelled to abate a portion of the pretensions originally made in its behalf, and to admit that the constitutional prohibitions upon Congress operate in the Territories. But a constitutional prohibition is not requisite to ascertain a limitation upon the authority of the several departments of the Federal Government. Nor are the States or people restrained by any enumeration or definition of their rights or liberties. To impair or diminish either, the department must produce an authority from the people themselves, in their Constitution," &c. It seems to be Judge Campbell's doctrine that the organized Government of the United States, has not, as a whole, any power whatever in the Territories, or that the powers of the Executive and Judiciary are only incidental or ancillary to the legislative powers which may have been granted to Congress,1 and that Congress has in
1 The necessity of determining, in the first instance, the mode of existence of the people of the U. S., the authors of the Constitution, as a question involved in the determination of private rights, has never been more apparent than in these questions respecting the law of the territories. Jndge Campbell's view seems to coincide with that stated ante, in the second paragraph of note on p. 409, that there is no integral people of the U. S., and to go to the extreme of that theory. 1 Compare ante, §§ 376, 397.
MR. JUSTICE CAMPBELL'S OPINION. 535
the Territories only the general powers which it may exercise for any part of the United States, and certain special powers, in relation to lands, &c., belonging to the United States, derived from the "territory and other property" clause. Judge Campbell does not, therefore, rely, with the Chief Justice, on that part of the Constitution which protects the individual subject equally against every department of the national or federal Government.
From the greater part of his argument on this point, pp. 506 —514, it would seem to be his opinion that the inhabitants of the Territory, or a certain portion of them, forming a political people, have therein the residue of sovereignty,1 or the powers not specifically granted to the national Government, although another doctrine is at the same time enunciated as antagonistical to the power claimed for Congress, which would, apparently, conflict with the theory of a residuary sovereignty inherent in the people of a Territory. This (if rightly apprehended) is, that the States severally, and as political persons, have juridical power in the Territories; or, that they may and do extend their laws into the Territories to determine the rights and obligations of persons therein, who anteriorly had been domiciled within their several State limits ; that " the Constitution and laws of one or more States determining property," cannot be "proscribed" by altering or destroying the effects of those laws upon the relations of such persons after their emigration and settlement in the Territory; that the duty of the national Government is, as the agent of the States severally, to maintain these effects in the Territories. See page 516 of the report. In other words (using the nomenclature herein before adopted) the doctrine is, that the national Government is bound to actualize or realize, in the Territory, the rights and obligations of private persons which have become existent under "the Constitution and laws determining property" in the State wherein such