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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, inay be understood to assert the doctrine as a rule of public law and one judicially cognizable.'

See Calhoun's Works, IV., 339-349, 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. 562-565, 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 sus. taining 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

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But Mr. Calhoun appears to have asserted the doctrine as a political rule only. Such an interpretation of his language would not be inconsistent with the doctrine of private law which he is believed to have held, that slavery is legal, or judicially cognizable, in all territory belonging to the United States, independently of positive legislation ; that is, even when no statute has been enacted on the subject by the possessors of sovereign power in and for the territory, (whoever they may be,) and that it will continue to be lawful there, until prohibited by such statute. This question, which is purely one of positive law, that is, of law applicable by judicial tribunals, is to be examined in a later portion of this treatise.

S 505. On page 448 of the report, Chief Justice Taney says of the powers of the Government in this respect, “ Whatever it acquires it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interest of the whole people of the Union in the exercise of the powers specifically granted.” And on the same page, “it (the Territory] was acquired by the General Government as the representative and trustee of the people of the United States, and it must, therefore, be held in that character for their common and equal benefit, for it was the people of the several States, acting through their agent and representative, the Federal Government, who, in fact, acquired the Territory in question, and the Government holds it

any of them shall be deprived of its full and equal right in any territory of the United States, acquired or to be acquired.

Resolved, That the enactment of any law, which should directly, or by its effects, deprive the citizens of any of the States of this Union from immigrating, with their property, into any of the territories of the United States, will make such discrimination, and would, therefore, be a violation of the Constitution and the rights of the States from which such citizens emigrated, and in derogation of that perfect equality which belongs to them as members of this Union, and would tend directly to subvert the Union itself.

Resolved, That it is a fundamental principle in our political creed, that a people in forming a Constitution have the unconditional right to form and adopt the government which they may think best calculated to secure their liberty, prosperity, and happiness; and that, in conformity thereto, no other condition is imposed by the Federal Constitution on a State in order to be admitted into this Union, except that its constitution shall be republican, and that the imposition of any other by Congress would not only be in violation of the Constitution, but in direct conflict with the principle upon which our political system rests."

Ante, p. 423, note.

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for their common use until it shall be associated with the other States as a member of the Union.”

But it would appear that so far as this doctrine of the equality of the States or of the people of the States in respect to the use and benefit of the Territory was recognized by the Chief Justice, and by Justices Wayne and Grier affirming the opinion of the court, that they agreed with Justices McLean and Curtis, in considering it as a political principle only ; a rule to govern Congress in the exercise of the power of determining all rights and obligations of private persons in the Territory where not limited by provisions in the Constitution of the nature of a bill of rights operating as private law. As to the extent of the guarantee of private property in this part of the Constitution, there was a difference of opinion; but no one of these members of the Court appears to have taken the principle either as a rule determining the location of juridical power, in respect to the status or condition of private persons, or as one which could in itself enable judicial tribunals to determine any rights or obligations of private persons.

Justices Daniel, Campbell, and Catron, on the contrary, all, with more or less consistency, recognize the proposition as a juridical rule, one by which the status of persons in the Territories may be judicially determined.

Judge Daniel, on page 489 of the report, (ante, p. 532,) regards the right asserted, in denying the power of Congress, as one belonging to the individual citizens of the slave-holding States as those who, with the individual citizens of the non-slaveholding States, are equally entitled to whatever use or benefit private persons may have of the territory. Judge Daniel therefore applies the rule as private law.

Judge Campbell, on the other hand, regards the right thus vindicated as one belonging to the States in their political personality ; or, taking the principle as a rule of public law, holds that the rights and obligations of natural persons residing in the Territories, which are incident to personal condition or status, are not dependent on the national powers or those vested in the federal Government, but depend upon the juridical will of some

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other possessors of sovereign power, for whom that Government is, in the Territory, only the agent or trustee.

Judge Catron also spoke of the right vindicated against the power of Congress as the right of the States, asserting that the slave-holder's right is protected in virtue of the equality of his State, (p. 527 of the report, ante, p. 540.) At the same time Judge Catron seems to rely on the protective effect of the treaty with France as creating an exception to the ordinary powers of Congress in respect to status of persons in the Territory, and to recognize Congress as the only possessor of juridical power in such Territory.

$ 506. The opinions of the several justices in Dred Scott's case, on the question of the constitutionality of the act of Congress of 1820 in prohibiting slavery, have been here cited under the general inquiry whether State legislatures, or (assuming that the national Government has in the Territories the powers ordinarily held by a State Government) Congress legislating for the Territories, &c., has the power to prohibit or abolish negro slavery.

It appears that of the six members of the Court who denied the constitutionality of the Act, four based that denial on the ground that slaves are property, in view of the Constitution operating as a bill of rights, and that the act of Congress was an infringement of that guarantee.

Of these members of the Court, Chief Justice Taney, and Justices Wayne and Grier adopting the opinion written by the Chief Justice, held that slaves are property by the national law, because rights of property in respect to them are specially recog. nized in the written Constitution, and also because slaves are property by common law, or an unwritten jurisprudence embraced in the national jurisprudence, independently of any specific recognition of slavery in the written Constitution.

Mr. Justice Daniel, in maintaining the protection of slavery in the Territories under the constitutional guarantee of private property, appears to have relied solely on the clauses of the written

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Constitution referring to slaves, as containing the recognition of slaves, as property, by the national law.

Mr. Justice Campbell denied the power of Congress on the ground that the relation of master and slave in the Territories depends upon some other possessor of legislative or juridical power. And Judge Daniel seems to have been with Judge Campbell in this doctrine, to some extent.

Mr. Justice Catron's assertion of the exclusive power of Congress in reference to the Territory and his distinct reliance on the treaty of cession, as limiting the power in respect to Louisiana, prevent the inference that he agreed in either of the doctrines above stated; however much his language, in some parts of his opinion, may accord with one or the other.

Three distinct grounds of denying the power of Congress were therefore relied on in this case ; but no one of these was supported by more than four of the nine members of the Court."

Independently of the question whether the opinion on the constitutionality of the act of Congress was extrajudicial, if it is the reason of a decision, or the ground on which it is made, which is authoritative, this diversity of opinion, as to the governing prin

* In case of a majority of votes in Kansas Territory for Constitution with no slavery, the (Lecompton) constitution to be adopted for the State by that vote under the organic law contained this clause : “no slavery shall exist in the State of Kansas, except that the right of property in slaves now in the Territory shall in no manner be interfered with." Alluding to this, President Buchanan, in his message, Dec. 8th, 1857, observes, “ These slaves were brought into the Territory under the Constitution of the United States, and are now the property of their masters. This point has at length been finally decided by the highest judicial tribunal of the country, and upon this plain principle, that when a confederacy of sovereign States acquire a new territory at their joint expense, both equality and justice demand that the citizens of one and all of them have the right to take into it whatever is recognized as property by the common constitution."

The decision in Dred Scott's case was, that slavery had always been sanctioned in that Territory by the local law; Congress having had no power to alter the local law in that respect. From the President's reference to the case, it would be thought that the court had decided that slaves carried into any Territory of the U. S. are slaves still. That doctrine may be a necessary conclusion from a denial of the power in Congress on the ground that slaves are “ property by the common constitution," or on the ground that the equality of the States or their citizens in the use and benefit of the Territories forbids the abolition of slavery. But neither of these two grounds was maintained by a majority of the Court. They are entirely distinct, and though some passages in Judge Catron's opinion are very similar in language, no member of the Court connected the two doctrines as the President has done in this instance. ? Ram on Legal Judgment, pp. 19–23.

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