페이지 이미지
PDF

CONTENTS. XXXIX

aEC. l'AOF.

474. State Constitutions, like that of the United States, are both evidence of sovereignty and a rule of action, . . . 514

475. Presumption that the existing State Governments are republican, 515 476. Civil liberty in each of the States may have a constitutional basis, 515

Conditions of the tenure of power by State Governments.

4X1. Powers of the States are residuary in respect to those held by the

national Government, ...... 515

478. Question of a limitation of the residuary power held by the people

of each State, . . . . . . .516

479. Constituted governments cannot be possessed of unlimited sove-

reignty, ....... 518

480. Distinction of the early State Governments as restricted or not by

written constitutions, ...... 518

481. Of common law restraining a State Government in the absence

of written constitutions, ..... 519

482. Customary law referred to in the construction of written consti-

tutions, ........ 520

483. Similarity of this inquiry to that of the extent of the power of

parliament, ....... 521

484. Continuation of the customary distinction of two systems of per-

sonal laws, ....... 522

485. Restraint on State power by international provisions in the Arti-

cles of Confederation, ...... 522

486. State power over personal condition has not been increased since

the Confederation, ...... 523

487. Except as restrained by fuasj-international provisions, personal

status depends on State power, .... 523

488. The power of the national Government in the Territories, &c., is

like that of a State Government, .... 525

Of power held by the local Governments to determine personal status.

489. Of constitutions operating as a local bill of rights, . . 525

490. Proposed method of inquiry, ..... 525

491. Supposed sanction for legislation reducing free blacks to slavery, . 527

492. The guarantee of private property as extending to rights in respect

to slaves, as property, ...... 527

Judicial opinions on this point in Dred Scott v. Sandford.

493. Opinion of the Court delivered by Chief Justice Taney, . . 528

494. Opinions of Justices Wayne and Grier, . . . 531

495. Views taken by Justices Daniel and Campbell, . . . 531

496. Mr. Justice Daniel's opinion, ..... 531
XI CONTENTS.

SEC. r.\CE

497. Mr. Justice Campbell's opinion, ..... 534

498. Mr. Justice Catron's opinion, .... 539

499. Views taken by Justices McLean and Curtis, . . . 541

500. Mr. Justice McLean's opinion, .... 542

501. Mr. Justice Curtis' opinion, ..... 546

Doctrines of the equality of the State* in respect to the territory of

the United States.

502. Of the doctrine as a principle of law, .... 554

503. Of the doctrine as a political principle, . . . 554

504. View taken by Mr. Calhoun and others, .... 555

505. Comparison of the views of the majority of the court on this point,

in Dred Scott's case, ...... 556

Argument that the legislative power is not thus restricted.

506. That, in this case, no principle for denying the power was support-

ed by a majority of the court, ..... 558

507. Fallacy in the doctrine that in the Constitution slaves are referred

to as property by local law, ..... 560

508. Fallacy in the doctrine that by its operation slaves are property

under national law, ...... 561

509. The doctrine of property in slaves as set forth in Chief Justice

Taney's opinion, ...... 561

510. Of the support of the power by its former customary exercise, 562

511. Of the rejection by the Chief Justice, in this question, of the laws

and usages of nations, ...... 563

512. Necessity of a customary standard of property, . . 564

513. The customary standard must be identified with the national juris-

prudence, ....... 565

514. The standard is found in the customary law of all civilized nations, 566

515. Or in the universal jurisprudence of all juridical nations, . . 567

516. Which was part of the American law having national extent and

£ua*t-international effect, ..... 568

517. Property in human beings is not now known by universal juris-

prudence, ....... 568

518. Distinction of a universal jurisprudence peculiar to the United

States, . . . . . . . .569

519. Historical proof that such law is not the foundation of slavery, 569

Slavery in the United States does not rest on a national common law.

520. That slavery rests on national common law is implied in Chief

Justice Taney's opinion, ..... 570

521. Senator Benjamin's assertion of the doctrine in the Kansas debate, 571

CONTENTS. Xli

ItC FAQI

522. Historical proof that slavery rests on local common law, . . 573

523. The question of the lawfulness of slavery in the Territories is one

of international private law, ..... 574

Of confusion arising from deficiency of terms.

524. Ambiguous use of the term positive law, .... 575

525. Use of terms by Justice Holroyd, in an English case, and by Chief

Justice Shaw, ....... 577

526. The failure to recognize natural reason in the historical law of

nations, ....... 579

527. Illustrated by Chief Justice Shaw in Commonwealth v. Aves, 579

528. Illustrated in an extract from Senator Benjamin's speech, . . 581

529. And in his reply to Senator Collamer, .... 584

530. Of Lord Stowcll and Judge Story as cited by Senator Benjamin, 586

Theories of the power of the national Government in the Territories.

531. The three functions of sovereignty are necessarily combined in the

manifestation of juridical power, .... 588

532. Conditions of the exercise of executive and judicial power in the

Territories, . . . . . . .589

533. Inconsistency in denying the legislative power in Congress, . 591

534. The idea that the national Government may remain neutral in re-

spect to slavery, ...... 592

535. Variance of Judge Campbell's theory with the local character of

State law, . . . . . . .594

536. Inconsistency of the conclusion with the doctrine to which it is

attributed, 595

Of the further exposition of the local municipal law.

537. Proposed abstract of local legislation, .... 596

538. Distinction of State laws as having universal personal extent, 596

539. Limitation of the view herealier to be taken of liberty and slavery, 597

INDEX OF CASES.

THE REFERENCE IS TO THE PAGE.

Albany Fire Ins. Co. v. Bay, 4 Comstock, 1,
Alfred v. Marquis of Fitzjames, 3 Espinasse, 3,
Almeida, case of, 12 Niles' Weekly Reg., 115, 213,.
American and Ocean Ins. Cos. v. Canter, 1 Peters, 511,
Anonymous, 2 Peere Williams, 75, .
Attorney General v. Stewart, 2 Mcrivale, 143,

. 133

380

495, 504, 508

453

. 115

116, 117

B Bank of Augusta v. Earle, 13 Peters, 519, 74

Bank of the United States v. Norton, 3 Marshall's Ky.. 422,

Beaumont v. Barrett, 1 Moore's Cases, P. C, 75,

Belt, case of, 7 N. Y. Legal Obs., 80,

Betty v. Horton, 5 Leigh, 615,

Blankard v. Galdy, 4 Mod.. 215, and Salkeld, 411,

Bloom v. Burdick, 1 Hill, 130, ....

Bodley v. Gaither, 3 Munroe, Ky., 57,

Bonham's Case, 8 Coke, 118, ...

Booth and Rycraft, cases of, 3 Wisconsin, 1,

Boucaut, case of the negro, 15 Causes Celebres,

Braddee v. Brownfield, 2 Watts and Serg., 275,

Braynard v. Marshall, 8 Pickering, 194,

Buckner v. Finley, 2 Peters, 586,

Buckwalter v. the United States, 11 Serg. and Rawle,

Butler v. Craig, 2 Harris & McHenry, 214,

Butt v. Rachel, 4 Munford, 209,

Butts v. Penny, 2 Levinz, 201, and 3 Keble, 785,

193.

[ocr errors]
[graphic]
[merged small][ocr errors]

Calder v. Bull, 3 Dallas, 386, 13, 140, 519

Calvin's case, 17 Coke. 7, 115, 116, 118, 160

Campbell v. Hall, Cowper, 204, 115, 196

Campbell v. Claudius, Peters' C. C. R., 484, 490 Carpenter v. Providence Ins. Co., 16 Peters, 495, .... 491

Carlton, case of, 7 Cowen, 471, 495

Chambers v. Warkhouse, 3 Levinz, 336, 180

Chamberlayne v. Harvey, 1 Ld. Raymond, 147, Carthew, 396, and 5

Mod. 187, 181,379

Chinn v. Respass, 1 Munroe, Ky., 25, 243, 359

Chisholm v. Georgia, 2 Dallas, 419, 408

City of London v. Wood, 12 Modern, 688, 127

Clark, case of Mary, 1 Blackford, Ind., 122, 139

Cochran v. Van Surlay, 20 Wendell, 365 620

Cohens v. Virginia, 6 Wheaton, 264, 431, 493

Collett v. Keith, 2 East, 260, 116

Collins v. Blantire, 2 Wilson, 351, 27

Commonwealth v. Alger, 7 Cushing, 53, 127

« "Aves, 18 Pickering, 193, ... 258,576-579

",:Cushing, 11 Mass., 67 495

""Feely, Virginia Cases, 321, 497

""Fox, 7 Ban's Pa. R., 336, 495

■ « Fuller, 8 Metealf, 313, 493

» "Harrison, 11 Mass., 63, 495

""Holloway, 5 Binney, 512, 495

""Holloway, 2 Serg. and Rawle, 305, . . . .495

""Leach, 1 Mass., 59. 133

""Lewis, 6 Binney, 266 430

""Murray, 4 Binney, 487, 495

Corporation of New Orleans v. Winter, 1 Wheaton, 91, 433

Coventry v. Woodall, Hobart, 134, 218 Craw v. Ramsey, Vaughan, 292, 116

D

Dash v. Van Kleeck, 7 Johnson, 477, 520

Davis v. Curry, 2 Bibb, 238, 208

Dawson, ex parte, 3 Bradford, 130, 71

Day v. Savage, Hobart, 87, 127

Dred Scott v. Sandford, 19 Howard, 393, . 204, 207, 214, 321, 334, 338,

340, 342, 358, 373, 406, 408, 409, 412, 435-437, 440-463, 471, 490,

491, 517. 528-558, 589. Dutton v. Howell, Shower's Pari. Cases, 24, 116

« 이전계속 »