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535 SLAVERY IN THE TERRITORIES.
persons were previously domiciled, and has no power to determine the continuance of those rights and obligations, even when the persons to whom they have been attributed have become domiciled in the Territory. The same doctrine would seem to limit the power which Mr. Justice Campbell supposed to belong to the people of the Territory.
Although this is properly a question of public law, or one of the location of sovereign power, the doctrine is, as stated by Judge Campbell, also operative as private law; that is, it is a rule by which judicial tribunals may determine rights and obligations of private persons in the Territories. On page 514, Judge Campbell proceeds to say, after enumerating certain subjects of legislation as being within the power of Congress: "I admit that to mark the bounds for the jurisdiction of the Government of the United States within the Territory, and of its power in respect to persons and things within the municipal subdivisions it has created, is a work of delicacy and difficulty, and, in a great measure, is beyond the cognizance of the judiciary department of that Government. How much municipal power may be exercised by the people of the Territory, before their admission to the Union, the courts of justice cannot decide. This must depend for the most part on political considerations, which cannot enter into the determination of a case of law or equity. I do not feel called upon to define the jurisdiction of Congress. It is sufficient for the decision of this case to ascertain whether the residuary sovereignty of the States or people has been invaded by the eighth section of the act of 6th March, 1820, I have cited, in so far as it concerns the capacity and status of persons in the condition and circumstances of the plaintiff and his family.1
"These States, at the adoption of the Federal Constitution, were organized communities, having distinct systems of muni1 On page 509, Mr. Justice Campbell says of "the expedient contained in the eighth section " of the Act of Congress, the Missouri Compromise, "For the first time in the history of the country has its operation been embodied in a case at law, and been presented to this court for their judgment. The inquiry is, whether there are conditions in the Constitutions of the Territories which subject the capacity and status of persons within their limits to the direct action of Congress. Can Congress determine the condition and status of persons who inhabit the Territories?"
Mr. Justice Campbell's Opinion. 537
cipal law, which, though derived from a common source, and recognizing in the main similar principles, yet in some respects had become unlike, and on a particular subject promised to be antagonistic.
"Their systems provided protection for life, liberty, and property, among their citizens, and for the determination of the condition and capacity of the persons domiciled within their limits. These institutions, for the most part, were placed beyond the control of the Federal Government. The Constitution allows Congress to coin money, and regulate its value; to regulate foreign and Federal commerce ; to secure, for a limited period, to authors and inventors, a property in their writings and discoveries ; and to make rules concerning captures in war; and, within the limits of these powers, it has exercised rightly, to a greater or less extent, the power to determine what shall and what shall not be property.
"But the great powers of war and negotiation, finance, postal communication, and commerce, in general, when employed in respect to the property of a citizen, refer to, and depend upon, the municipal laws of the States, to ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held.
"Whatever these Constitutions and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognize to be property.
"And this principle follows from the structure of the respective Governments, State and Federal, and their reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their respective jurisdictions, are mutually obligatory. They are respectively the depositories of such powers of legislation as the people were willing to surrender, and their duty is to co-operate within their several jurisdictions to maintain the rights of the same citizens under both Governments unimpaired. A proscription, therefore, of the Constitution and laws of one or more
538 MB. JUSTICE CAMPBELL'S OPINION.
States, determining property, on the part of the Federal Government, by which the stability of its social system may be endangered, is plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government was designed to accomplish. Each of the States surrendered its powers of war and negotiation, to raise armies and to support a navy, and all of these powers are sometimes required to preserve a State from disaster and ruin. The Federal Government was constituted to exercise these powers for the preservation of the States, respectively, and to secure to all their citizens the enjoyment of the rights which were not surrendered to the Federal Government."
On page 516, the same judge observes: "This court have determined that the intermigration of slaves was not committed to the jurisdiction or control of Congress.1 Wherever a master is entitled to go within the United States, his slave may accompany him, without any impediment from, or fear of, congressional legislation or interference. The question then arises whether Congress, which can exercise no jurisdiction over the relations of master and slave within the limits of the Union, and is bound to recognize and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit the continuance of those relations, within the Territories. And the citation of State statutes prohibiting the immigration of slaves, and of the decisions of State courts enforcing the forfeiture of the master's title in accordance with their rule, only darkens the discussion. For the question is, have Congress the municipal sovereignty in the Territories which the State Legislatures have derived from the authority of the people and exercise in the States? And this depends upon the construction of the article in the Constitution before referred to. And, in my opinion, that clause confers no power upon Congress to dissolve the relations of the master and slave on the domain of the United States, either within or without any of the States."
1 Referring probably to Groves v. Slaughter, 15 Peters, 449.
MR. JUSTICE CATRON'S OPINION. 539
On the supposition then that the national Government does hold, in and for the Territory, those powers which a State Government holds in and for a State,1 it does not appear that Judge Campbell would agree with the Chief Justice, that the slaveholder's right is protected there by the private law of the Constitution, operating like a bill of rights in the guarantee of private property.
§ 498. Mr. Justice Catron, on pages 519-523, maintains, as firmly as any other member of the court, that the only valid legislation operating in the Territories is that proceeding from power held by Congress, and appears to be of the opinion that all the ordinary powers of a State Government have, by the words of the Constitution, been granted to Congress. But Judge Catron finds that the power of Congress in the Territory of Louisiana is restricted by the conditions of the treaty, of cession, made with France in 1803 (see pages 524-528). This doctrine, which is the ground principally relied on by Judge Catron in the decision of the question, will be further considered in a later portion of this work.
But notwithstanding his view of the powers of Congress in the Territories, as above stated, Judge Catron appears at the same time to be, in some degree, with either Judge Daniel or Judge Campbell in their doctrines of the limitation of the power of Congress in all the Territories, as respects a right of "equality" belonging to the States or to the citizens of the States.
On page 526 of the report, after referring to the cessions made by Georgia and North Carolina of western territory, and to the fact that no guaranty was required by Georgia from the United States for the protection of slave property, Mr. Justice Catron says, "The Federal Constitution was relied on to secure the rights of Georgia and her citizens during the Territorial condition of the country. She relied on the indisputable truths, that the States were by the Constitution made equals in political rights and equals in the right to participate in the common property of all the States United, and held in trust for them. The Constitution having provided that the 'citizens of
1 Ante, p. 52a
540 MB. JUSTICE CATRON'S OPINION.
each State shall be entitled to all privileges and immunities of citizens of the several States/ the right to enjoy the territory as equals was reserved to the States, and to the citizens of the States respectively. The cited clause is not that the citizens of the United States shall have equal privileges in the Territories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures his equality through the equality of his State, by virtue of that great fundamental condition of the Union, the equality of the States.
"Congress cannot indirectly what the Constitution prohibits directly.2 If the slave-holder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact,3 it will follow that men owning lawful property in their own States, carrying with them the equality of their State to enjoy the common property, may be told, you cannot come here with your slaves, and he will be held out at the border. By this subterfuge, owners of slave property, to the amount of thousands of millions, might be almost as effectually excluded from removing into the Territory of Louisiana north of thirty-six degrees thirty minutes, as if the law declared that owners of slaves, as a class, should be excluded, even if their slaves should be left behind. Just as well might Congress have said to those of the North, you shall not introduce into the territory south of said line your cattle and horses, as the country is already overstocked, nor can you introduce your tools of trade, or machines, as the policy of Congress is to encourage the culture of sugar and cotton south of the line, and so to provide that the Northern people shall manufacture for those of the South, and barter for the staple articles slave labor produces. And thus the Northern farmer and mechanic would be held out, as
1 The clause in Art. iv, sec. 2, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." It would appear from this that, in the judge's opinion, the slave-holder's right under the law of his former residence is guaranteed even when the Territory becomes a State, and if so, it must be equally guaranteed in all the older States.
* Keferring, apparently, to the clause above cited.
* Here a somewhat different theory of the right of slave-holders is intimated, that slavery is a relation between persons, one of the relations of family, like that of husband and wife, parent and child. It can hardly be meant that in the slave-holding States wives and children arc property.