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POWER IN THE TERRITORIES. 591

gxess, it follows that the executive and judicial functions of the national Government cannot be applied to maintain such rights and obligations in virtue of any grant of power, contained in the Constitution, to the national executive and judiciary.

§ 533. And if these functions of sovereign power, the executive and judicial functions, may be exercised by the national Government to maintain in the Territories any rights and obligations of private persons, not determined by the private law of the Constitution nor ascribable to an exercise of juridical power in some treaty, there are only two theories or views of public law on which their exercise can be justified. Either the legislative or juridical power which determines those rights and obligations has been granted to Congress in the Constitution, (being limited by the Constitution operating as a bill of rights,) or else the three functions of sovereign power are, in reference to the Territories, held by the national Government as an integral political personality, representing the people of the United States, independently of separate grants of power in the written Constitution to its executive, legislative, and judiciary departments, (being, nevertheless, limited by the Constitution operating as a bill of rights,) and the rights and obligations maintained and enforced by the executive and judicial functions, held by that Government, are derived from or dependent on the legislative (juridical) power held by Congress.

There is certainly no consistency in denying the legislative power of Congress over the rights and obligations incident to the status of persons in the Territories, by alleging that the power to create, establish, or determine such rights and obligations, has not been granted, while at the same time the exercise of executive and judicial power, in reference to the same subject, is maintained; though equally unsupported by any grant in the Constitution. For whether the executive and judicial functions are employed to enforce a rule derived from statute or from unwritten jurisprudence, and whether the rule enforced by them was or was not first promulgated by Congress, the juridical • 88

:592 FREEDOM OR ITS CONTRARIES

power of the nation is as much exercised in one case as in the other.1

Whether the power to determine the status or condition of private persons in the Territories has or has not been granted to Congress, by the Constitution, in terms, there is but one conclusion; either Congress has the power, (limited only by the Constitution operating as a bill of rights,) or else the executive and judicial functions of the national Government cannot be exercised in reference to rights and obligations incident to the status or condition of such persons. In other words, either the rights and obligations incident to status in the Territories are maintained by the three functions of sovereignty held by the Government created by the Constitution, (limited only by the Constitution operating as a bill of rights and as private law,) or else they are maintained by those functions invested in some other depositary or possessor of sovereign power.

A judge adopting any other theory for the action of the executive and judiciary, in reference to the subject, must himself virtually assume the legislative (juridical) power which he denies to Congress.2

§ 534. The attribution of relative rights is possible only under particular circumstances of natural condition, or circumstances in which it is not necessary that all persons should be found, and those rights, therefore, are not necessarily either attributed or denied to each person under positive law. But all natural persons are in circumstances in which individual rights and capacity for relative rights may be attributed to them, and each person under positive law must be either a legal person, by the attribution of those rights and that capacity, or be a chattel or thing, by being only the legal object of rights attributed to other natural persons.

1 See North Am. Rev., April, 1858, p. 477, in an article on Dner"s Constitution*! Jurisprudence.

2 Compare the language of Mr. Justice Curtis, in 19 Howard, 620, 621, (antt. p. 547, 548,) concluding: "we aro under the government of individual men, who for the time being have the power to declare what the Constitution is, according to their own views of what it ought to mean. When such a method of interpretation of the Constitution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of t/ie members of this court."

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ARE NECESSARILY EXTENDED. 593

Although no legal right is herein supposed to exist of necessity or by a natural law, independently of positive law as herein defined, yet individual rights are, in this sense, natural or primordial, that, wherever a natural person exists in a state or organized civil society, these rights must either be legally attributed to him or be denied by the maintenance of antagonistic rights in others. And since status or personal condition consists in the attribution or denial of individual rights and capacity for relative rights, a status of freedom or of some of its contraries is necessarily attributed to each person living under positive law.1 The rights of masters immigrating with slaves into the Territories may be there maintained, as they existed under the law of their State domicil, by enforcing obligations correlative to those rights on the part of the slaves and of all other persons; or those rights may be disallowed, and the slaves placed in different relations towards their former masters and other persons. But either the national juridical power must be manifested in the Territories, in the maintenance, by the executive and judicial functions of the national Government, of those rights and obligations by whose realization status or personal condition exists, or else the sovereign power of determining status or condition must be abandoned to whomsoever may there have the force to maintain those obligations for themselves and others. Of necessity, therefore, whether Congress should or should not legislate on the subject, either freedom or its contraries are maintained and extended by the action of the national Government in the condition of every natural person acquiring a residence in the Territories. And it is absurd to say, that in respect to the extension or non-extension of slavery and freedom in the territory of the United States, the national Government may do neither."

1 For this use of terms compare ante, §§ 40-44.

* In the address of the Southern delegates in Congress, to their constituents, Feb. 1849, drawn by Mr. Calhoun, and published among his Works, vol. vi., on pages 301, 302, is the following:

"The North no longer respects the Missouri compromise line, though adopted by their almost unanimous vote. Instead of compromise, they avow that their determination is to exclude slavery from all the territories of the United States, acquired or to be acquired; and, of course, to prevent the citizens of the Southern States from emigrating with their property in slaves into any of them. Their object, they allege, is to prevent the extension of slavery, and ours to extend it, thus making the issue between them and us to be the naked question, Shall slavery be extended or not? We do not deem it necessary, looking to the object of this address, to examine the question so fully discussed at the last session, whether Congress has the right to exclude the citizens of the South from emigrating with their property into territories belonging to the confederated States of the Union. What we propose in this connection is, to make a few remarks on what the North alleges, erroneously, to be the issue between us and them.

594 REMARKS ON INCONSISTENCIES

§ 535. The questions, what conditions of freedom or its contraries may exist by law in the Territories, independently of statute; whether negro slavery may or may not exist there by law, and whether it may be lawful or will continue there in the case of slaves brought from the slave-holding States independently of positive legislative enactment, and to what possessors of sovereign power the law affecting conditions of freedom and its contraries may be ascribed in any one of the several Territories of the United States, regarded as jurisdictions having a several local municipal law, as distinguished from the national municipal law, are to be considered in another volume, in the historical exposition of the laws of the several jurisdictions embraced within the entire dominion of the United States.

But if the method of determining the status of private persons in the Territories which was indicated by Mr. Justice Campbell and supported to some degree by Justices Daniel and Catron, in the passages cited from their opinions in Dred Scott's case, is legitimate, it is evident that the distinction of the laws prevailing within the dominion of the United States as being In Mr. Justice Campbell's Theory. 595

"So far from maintaining the doctrine which the issue implies, we hold that the Federal Government has no right to extend or restrict slavery, no more than to establish or abolish it, nor has it any right whatever to distinguish between the domestic institutions of one State, or section, and another, in order to favor the one and discourage the other. As the federal representative of each and all the States, it is bound to deal out, within the sphere of its powers, equal and exact justice and favor to all. To act otherwise, to undertake to discriminate between the domestic institutions of the one and another, would be to act in total subversion of the end for which it was established, to be the common protector and guardian of all. Entertaining these opinions, we ask not, as the North alleges we do, for the extension of slavery. That would make a discrimination in our favor, as unjust and unconstitutional as the discrimination they ask against us in their favor. It is not for them nor fur the federal Government to determine whether our domestic institution is good or bad; or whether it should be repressed or preserved. It belongs to us, and to us only, to decide such questions. What then we do insist on, is, not to extend slavery, but that we shall not be prohibited from emigrating with our property into the Territories of the United States because we are slaveholders; or, in other words, that we shall not on that account be disfranchised of a privilege possessed by all others, citizens and foreigners, without discrimination as to character, profession, or color. All, whether savage, barbarian, or civilized, may freely enter and remain, we only being excluded."

either national or local in extent, (which was made in the thirteenth chapter,) would be improper. The law derived from the separate or reserved powers of a State of the Union would be improperly described as local in respect to the limits of the State, if any persons before domiciled in such State, were found in the Territories. And the law prevailing in a Territory, or, at least, all law determining the possession of individual rights and legal capacity, would not be local as to the Territory, but a variable aggregate of the laws of a greater or less number of the States, having there a personal extent. Or the only local law determining that class of rights would be those applying to persons not known to have been formerly domiciled in some one of the States.1

§ 536. And, since rights cannot be maintained except by the enforcement of obligations existing correlatively in some relation between persons, in supposing that the law of a State operates in the Territory to determine the rights of persons therein who before had been domiciled in that State, correlative obligations on the part of persons in the same Territory, though coming from another State, are necessarily supposed to be determined by the laws of the first. In determining the various relations which may exist between the inhabitants of a certain forum or jurisdiction, juridical power may be divided; so that some relations are determinable by one juridical person and others by another. As, for example, in each State of the Union the powers held by the national Government and the "reserved" powers of the State determine different relations. But it is impossible that in any one relation the rights and obligations of those between whom it exists should be respectively determined by different legislators. The individual right of property involves the existence of obligations on the part of the community; and the right of a slave owner in respect to his slave as the object of his right of property, involves various obligations on the part of other persons in the same jurisdiction.' The doctrine that the

1 And it would seem that under that theory the State law would govern the condition of the descendants of the emigrants from the States; carrying out the idea of personal laws having a heritable character. Compare ante, § 193.

'Compare ante, p. 309, note 1.

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