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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 pro visions and guarantees which have been provided for the protection of private property against the encroachments of the Gov

ernment.

"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. 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.

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 lan

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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'S 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 uno flatu, to another, to rob him of that property, or to subject him to proscription and disfranchisement for

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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,' and that Congress has in

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 de