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MR. JUSTICE CURTIS' OPINION. 551
tions, which grow out of that status, must be defined, protected, and enforced, by such laws. The liability of the master for the torts and crimes of his slave, and of third persons for assaulting or injuring, or harboring or kidnapping him, the forms and modes of emancipation and sale, their subjection to the debts of the master, succession by death of the master, suits for freedom, the capacity of the slave to be party to a suit, or to be a witness, with such police regulations as have existed in all civilized States where slavery has been tolerated, are among the subjects upon which municipal legislation becomes necessary when slavery is introduced.
"Is it conceivable that the Constitution has conferred the right on every citizen to become a resident on the Territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any municipal regulations which are essential to the existence of slavery?
"Is it not more rational to conclude that they who framed and adopted the Constitution were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws; that they must cease to be available as property, when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of slavery exist; and that, being aware of these principles, and having said nothing to interfere with or displace them, or to compel Congress to legislate in any particular manner on the subject, and having empowered Congress to make all needful rules and regulations respecting the territory of the United States, it was their intention to leave to the discretion of Congress what regulations, if any, should be made concerning slavery therein? Moreover, if the right exists, what are its limits, and what are its conditions? If citizens of the United States have the right to take their slaves to a Territory, and hold them there as slaves, without regard to the laws of the Territory, I suppose this right is not to be restricted to the citizens of slaveholding States. A citizen of a State which does not tolerate slavery can hardly be denied the power of doing the same thing. And what law of slavery does either take with
552 MB. JUSTICE CURTIS' OPINION.
him to the Territory? If it be said to be those laws respecting slavery which existed in the particular State from which each slave last came, what an anomaly is this? Where else can we find, under the law of any civilized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in slavery? I say, not merely to introduce, but permanently to continue, these anomalies. For the offspring of the female must be governed by the foreign municipal laws to which the mother was subject; and when any slave is sold or passes by succession on the death of the owner, there must pass with him, by a species of subrogation, and as a kind of unknown jus in re, the foreign municipal laws which constituted, regulated, and preserved the status of the slave before his exportation. Whatever theoretical importance may be now supposed to belong to the maintenance of such a right, I feel a perfect conviction that it would, if ever tried, prove to be as impracticable in fact, as it is, in my judgment, monstrous in theory. "I consider the assumption which lies at the basis of this theory to be unsound; not in its just sense, and when properly understood, but in the sense which has been attached to it. That assumption is, that the territory ceded by France was acquired for the equal benefit of all the citizens of the United States. I agree to the position. But it was acquired for their benefit in their collective, not their individual, capacities. It was acquired for their benefit, as an organized political society, subsisting as 'the people of the United States,' under the Constitution of the United States; to be administered justly and impartially, and as nearly as possible for the equal benefit of every individual citizen, according to the best judgment and discretion of the Congress; to whose power, as the Legislature of the nation which acquired it, the people of the United States have committed its administration. Whatever individual claims may be founded on local circumstances, or sectional differences of condition, cannot, in my opinion, be recognized in this court, without arrogating to the judicial branch of the Government powers not committed to it; and which, with all the unaffected respect I feel for it, when acting in its proper sphere, I do not think it fitted to wield.
SLAVERY IN THE TERRITORIES. 553"Nor, in my judgment, will the position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, bear examination.
"It must be remembered that this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter. It existed in every political community in America in 1787, when the ordinance prohibiting slavery north and west of the Ohio was passed.
"And if a prohibition of slavery in a Territory in 1820 violated this principle of Magna Charta, the ordinance of 1787 also violated it; and what power had, I do not say the Congress of the Confederation alone, but the Legislature of Virginia, or the Legislature of any or all the States of the Confederacy, to consent to such a violation? The people of the States had conferred no such power. I think I may at least say, if the Congress did then violate Magna Charta by the ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slave-holding States which have enacted the same prohibition? As early as October, 1778, a law passed in Virginia, that thereafter no slave should be imported into that Commonwealth by sea or by land, and that every slave who should be imported should become free. A citizen of Virginia purchased, in Maryland, a slave who belonged to another citizen of Virginia, and removed with the slave to Virginia. The slave sued for her freedom, and recovered it; as may be seen in Wilson v. Isabel, (5 Call's R. 425.) See also Hunter v. Hulsher, (1 Leigh, 172 ;) and a similar law has been recognized as valid in Maryland, in Stewart v. Oaks, (5 Har. and John. 107.) I am not aware that such laws, though they exist in many States, were ever supposed to be in conflict with the principle of Magna Charta incorporated into the State Constitutions. It was cer
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tainly understood by the Convention which framed the Constitution, and has been so understood ever since, that, under the power to regulate commerce, Congress could prohibit the importation of slaves ; and the exercise of the power was restrained till 1808. A citizen of the United States owns slaves in Cuba, and brings them to the United States, where they are set free by the legislation of Congress. Does this legislation deprive him of his property without due process of law? If so, what becomes of the laws prohibiting the slave trade? If not, how can a similar regulation respecting a Territory violate the fifth amendment of the Constitution?"
§ 502. The proposition, that the several States of the Union, or their citizens, are equally entitled to the use and benefit of the territory belonging to the United States; that the maintenance of slavery in every part of such territory is essential to enable the slave-holding States, or their citizens, to enjoy equally with the non-slaveholding States, or their citizens, that use and benefit of the territory; and that, therefore, Congress had no power to abolish or prohibit slavery in the Louisiana Territory is, as maintained by some of the Justices in this case, a judicial or legal rule, or a rule of law, one by which the rights and obligations of natural persons may be coercively maintained and judicially determined. And it is equally so whether the right which is asserted by the denial of the power is one vested in the individual citizens of the slave-holding States, or one vested in the slaveholding States as political persons; that is, whether the principle is applied as public or as private law.1 For in either case the obligations which are enforced, as correlative to the right which is maintained, are obligations of private persons.
§ 503. As such judicial or juridical rule, the proposition should be distinguished from one which may be expressed in very similar terms. This is, that the several States, or their citizens, are equally entitled to the use and benefit of the territory belonging to the United States; that the powers held by the national Government in respect to this territory are held under the obligation or trust of securing to the several States, or their
1 Ante, § 26.
AS TO THE TERRITORIES. 555
citizens, this equality; that the maintenance of slavery in every part of such territory is essential to enable the slave-holding States, or their citizens, to enjoy equally with the non-slaveholding States, or their citizens, that use and benefit of the territory; and that, therefore, Congress has no right to abolish or prohibit slavery in any of the Territories.
For whether the States, as political persons, or the individual citizens of the several States are the persons thus supposed to be equally entitled to the use and benefit of the territory, this proposition is only a political rule; or, negatively, it is not asserted as a rule of law, or one by which the rights and obligations of private persons are coercively maintained and judicially determined. The obligation, correlative to the right asserted, is one on the part of the Government as a political agent, and beyond the reach of the judiciary, which is a part of the same Government.
§ 504. It may be doubted whether a majority of those members of Congress, or persons in other spheres of public action, who have contended against the legislative prohibition of slavery in the Territories, have maintained the above proposition as a rule of law judicially applicable, or as being other than a political principle. The late Mr. Calhoun, who is well known to have insisted on the strictest construction of all powers of the national Government, when the question was of their exercise for the restriction of slavery, may on many occasions have advocated propositions which, as now read, may be understood to assert the doctrine as a rule of public law and one judicially cognizable.1
1 See Calhoun's Works, TV., 839-849, the resolutions presented by him in the Senate of the U. S., Feb. 19, 1847, and Mr. Calhoun's remarks on that occasion. Ibid. 535—541, Remarks on the proposition to establish territorial Governments in New Mexico and California, Feb. 24, 1849. Ibid. 562-566, in his speech, March 4, 1850, where Mr. Calhoun asserts to the fullest extent the power of Congress over slavery in the Territories, while claiming, as a constitutional right, its exercise in sustaining slavery. Compare remarks on Mr. Calhoun's position in this question and on the distinction of the doctrine, as a political rule or as a legal one, in the review of Dred Scott's case, in Monthly Law Reporter, April, 1857, p. 35. The resolutions of Feb. 1847, were as follows:
"Resolved, That the Territories of the United States belong to the several States composing this Union, and are held by them as their joint and common property.
"Resolved, That Congress, as the joint agent and representative of the States of this Union, has no right to make any law, or do any act whatever, that shall directly, or by its effects, make any discrimination between the States of this Union, by which