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CONSTITUTIONAL BECOGNITION. 561
§ 508. In the proposition above noticed, it is merely asserted that the slave is recognized, by the national juridical authority, as property, while he is subject to some State law, either as being within its territory, or a fugitive from it.1 It may be doubted whether, before this opinion of the Chief Justice, supported by Justices Wayne, Grier, and Daniel, it has ever been maintained by any persons, that not only, by these clauses, are slaves recognized as property within the State jurisdiction and when fugitive, but also, in these clauses, they are, by the juridical action of the nation, recognized as property throughout the entire dominion of the United States. No argument has been put forth as leading to such a conclusion. It seems to be founded on an assumption that there is no distinction between rights supported by a law of national authority and rights supported by law having national extent; that if the national authority supports the master's right, in any case, as a right of property, the national law supports it as a right of property everywhere. The doctrine requires, apparently, the admission of two fallacies.
This question of the proper interpretation of these clauses of the Constitution, or whether, in them, slaves are recognized as persons or as property, will be more fully considered in another portion of this treatise as a question of the gwem'-international law of the United States, or that law which is national in its authority and international in its effect as between the States, and by the character of the persons whose rights and obligations it determines.
§ 509. But in the first part of the extract from the opinion delivered by the Chief Justice, the broader ground seems to be relied on that the slave-holder's right comes within the guarantee, because there is no "difference between property in a slave and
1 So even Judge Story, in Prigg's case, 16 Peters, 613, holding that by the operation of the constitutional provision the fugitive slave was still in the same condition he had been in, in the State from which he had escaped, and, therefore, might be seized by his owner and carried back without public authority notwithstanding it was declared in the same provision that the fugitive person should be delivered up on claim, and Judge Baldwin, in Groves v. Slaughter, 15 Peters, 515, holding that slaves "being property, by the law of any State, the owners are protected from any violation of the rights of property by Congress under the fifth Amendment of the Constitution," only claim that while their condition is determined by State authority to be property, the national Government must also recognize them as property.
562 LEGISLATIVE CRITERION.
other property;" or, perhaps, the doctrine held may be thus expressed: that there is no distinction in law, or in the jurisprudence which may be applied by the national judiciary, between rights of property in respect to slaves, and, rights in respect to slaves as property.
§ 510. In any inquiry into the extent of terms used in the definition of chartered rights, (i. e., rights which have long been secured by written charters or bills of rights,) it is to be noticed that whether the judicial function is relatively superior, or co-ordinate, or subordinate, the practice of the legislating bodies, whose power in this respect is to be ascertained, and that of their actual predecessors, is the admitted ordinary exponent of the rule which is to determine the question. For, since in the very great majority of instances the action of the judiciary follows that of the legislature, if any conflict should arise as to the extent of the legislative function, a public customary law known by the continued, before-undisputed exercise of the legislative power, is all that can be appealed to.
Now the legislative exposition of the law, which is given in asserting legislative power to create, modify, or terminate the right of ownership in respect to natural persons has, in the history of the world, been constant, concurrent, and continued, from the "time whereof the memory of man runneth not to the contrary ;" and the same power, as exercised solely with reference to the slavery of negroes, Indians, and others not of Caucasian or European race, has been illustrated in the legislative history of the British empire and of the colonies, as presented in the former part of this work, in the claims of the revolting colonies against parliament,1 and in the history of local law in all the States, both those wherein negro slavery has been abolished and those wherein it has continued. As will be more particularly shown hereafter in that connection, the entire power over slavery of persons not of European or white race, to establish, modify, or abolish it, has in most of the States been assumed by the constituted legislatures, without question from the judiciary ; unless specific provisions limiting the legislature in this
1 Ante, p. 226, note 4.
CRITERION OF PROPERTY. 563
respect have, as in some of the southern States, been introduced into the written Constitution. It appears never to have been judicially doubted, before this decision, that the entire power over the subject was in the constituted legislatures; in that of the State Governments for the States, and in Congress for the Territories, &c., unrestrained by common law or by bills of rights. And, until the Act of Congress of May 30. 1854, popularly known as the Act repealing the Missouri Compromise,8 the power had been exercised without question by Congress legislating for the Territories.
§ 511. The Chief Justice, in that part of the Opinion which has been referred to, notices the fact that "the laws and usages of nations and the writings of eminent jurists upon the relation of master and slave, and their mutual rights and duties and the powers which governments may exercise over it, have been
* Entitled, An Act to organize the Territories of Nebraska and Kansas. In sec. 14, it is provided, "That the Constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within the said Territory of Nebraska as elsewhere within the United States; except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which being inconsistent with the principle of non-intorvention by Congress with slavery in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States, Provided, that nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of 6th March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolishing slavery." Sec. 32, applies the same words to Kansas. The acts of 1850, referred to here, are not particularized. Those popularly known as the Compromise Measures, are laws 31st Congress, ch. 47, entitled An Act proposing to the State of Texas the Establishment of her Northern and Western Boundaries, the Relinquishment by the said State of all Territory claimed by her exterior to said Boundaries, and of all her claims upon the United States, and to establish a Territorial Government for New Mexico. Sec. 2, of this act provides, "That, when admitted as a State, the said Territory, [of New Mexico,] or any portion of the same, shall be received into the Union, with or without slavery as their constitution may prescribe at the time of their admission." Also, ch. 50, An Act for the Admission of the State of California into the Union; ch. 51, An Act to establish a Territorial Government for Utah; in neither of which last is any thing said about slavery; ch. 60, The fugitive slave law, and ch. 63, An Act to suppress the Slave Trade in the District of Columbia.
TheactofMar. 6, 1820, was entitled, for the admission of Missouri and "toprohibit slavery in certain territories." Sec. 8, provided, "That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirtysix degrees and thirty minutes north latitude, not included within the limits of the State contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes whereof the parties shall have been duly convicted, shall be and is hereby for ever prohibited."
564 CRITERION OF PROPERTY.
dwelt upon in the argument" of this case, as determining whether, as was urged or supposed on one side, " there is a difference between property in a slave and in other property, and that different rules may be applied to it in expounding the Constitution of the United States."
If the term "law of nations," is here taken in the sense usually given to it in English and American jurisprudence,1 the sense of public international law, a law of imperfect obligation, acting on states or nations as its subjects, the very definition of that law maintains the declaration of the Chief Justice, "that there is no law of nations standing between the people of the United States and their Government and interfering with their relation to each other." So, too, it must be admitted by all who recognize the Constitution as the supreme public law, that "the powers of the Government and the rights of the citizen under it are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted." It follows also, from the recognition of the constituting people of the United States as a sovereign, that "no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government or take from the citizens the rights they have reserved." These propositions seem to be unquestioned. As Mr. Justice Catron says, on page 519 of the report, "That Congress has no authority to pass laws and bind men's rights beyond the powers conferred by the Constitution is not open to controversy."
§ 512. But when the question before a judicial tribunal is, as it was stated by the Chief Justice, on page 444 of the report, "what power Congress can constitutionally exercise in a Territory over the rights of persons or rights of property of a citizen;" or, when, as said by Mr. Justice Catron, on page 519, "it is insisted that, by the Constitution, Congress has power to legis
1 Compare ante, § 146.
CRITERION OF PROPERTY. 565
late for and govern the Territories of the United States, and that by force of the power to govern, laws could be enacted, prohibiting slavery in any portion of the Louisiana Territory, and, of course, to abolish slavery in all parts of it, whilst it was, or is, governed as a Territory ;" and when the tribunal refers to those provisions of the Constitution which are in the nature of a bill of rights, or operate as private law in securing rights to private persons throughout the whole dominion of the people of the United States, as against the constituted Government, and designates the clause declaring that no person shall be deprived of property without due process of law, as securing a particular right in controversy; it is to be presumed, (and in direct proportion with the respect due to the court is the strength of the presumption,) that the judge will conceive of property according to some standard, criterion, or definition known to, and customarily accepted by, the possessors of sovereign power whose will he is to apply as law; that the standard of property will not be merely such as he himself conceives to be proper, expedient, morally or politically desirable, or conformable to the law of nature, simply as he conceives it to be.1
If there is no written or statute law, derived from this possessor of sovereign power, whose will and whose will alone the tribunal can enforce, which declares what is or is not property, the definition must be found in an unwritten or customary law which has been maintained by that possessor of sovereign power.
§ 513. There may be cases, coming before the national judiciary in its application of the ywosi-international law, in which rights and obligations are to be determined according to the law of one of the several States or a local municipal law; though
1 Wynehamer agtt. the People, (a case under the prohibitory liqnor law,) 3 Kernan 385; Comstock, J., "The foundation of property is not in philosophic or scientific speculations, nor even in suggestions of benevolence and philanthropy. It is a simple and intelligible proposition, admitting in the nature of the case no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution of law, and not a result of speculation in science, in morals, or economy." And so in determining this question of property in negroes, it is equally immaterial whether negroes naturally are and ought, legally, to be held equal to whites, or whether they naturally are and ought, legally, to be held inferior creatures, and, as domestic animals, merely instruments in the possession of legal persons.