The spirit of democracy. [volume] (Woodsfield, Ohio) 1844-1994, 1848-09-09
Judge McLanes Opinion on the Pow.
er Of Congress- over Slavery.


Judge McLanes Opinion on the Pow
er Of Congress over Slavery.
We commend the following opinion Of Judge
McLane, of the Supreme Court, to the attention
Of our readers. II was first published in the Ma
tional Intelligencer, the organ of the whig party
of the Union, in December last, and was prepared
at the Judges leisure. II sanctions the posi-.
tons we have assumed on the question Of slavery
in the Territories:
From the National Intelligencer, Dec. 10th.
HAS CONGRESS TIE POWER TO IN
STITuTE SLAVERY?
The first article OF The constitution
declares "that all legislative powers
herein granted shall be vested in Cong
ress Of the United States," &c. This
limits the legislative action Of Congress
to the subsequently, enumerated pow
ers.
In the eighth section Of the first article
of the constitution it is declared that
Congress shall have power "to exercise
exclusive legislation, in all cases what
soever, over such district, not exceed
ing ten miles square, as may, by conces-
sion of particular states and the accep-
tance Of Congress, become the seat OF
government OF the United States; and
to exercise like authority over all places
purchased by consent Of the legislature
of the state, in which the same shall be;
for the erection Of forts, magazines, ar
senals, dock.yards and other need(ul
buildings"
Under these provisions the cession OF
the District of Columbia was made,
within which territory, slavery has long
been sanctioned, so that the power OF
Congress to institute il within the Dis
trict did not arise; and no one, it is sup
posed, would contend that within the
cession of non .sIaveholding state for
forts, &c., Congress could establish
slavery. -.
In no part of the constitution are
slaves named or referred TO as proper
ty; they are designated as persons. In
the second section of the first article
which apportions representatives and
direct taxes, the words "thrce fiths Of
all PERSONS" includes slaves. They are
referred to in the ninth section OF the
same article, which declares that "the
migration or importation of such per-
sons as any Of the States now existing
shall think proper 10 admit, shall not be
prohibited BY ihe Congress prior to the
year eighteen hundred and eight" and
also in the second section OF the fourth
article, in relation to fugitives from la.
Dor. In no other part Of The constl'n'
ton is there any referance to slaves.
In the third section of the fourth ar.
ticle it is declared "that Congress shall
have power TO dispose Of and make all
needfu rules and regulations respecting
the territory or other property belong
Ing to the United States" The power
here given is limited TO the regulation
of the property Of the government, and
NAV be exercised as we'll within state
as territory. 1t gives no express pow
er to institute territorial government,
or 10 adopt regulations beyond the
specific objects Of its grant. Congress
are authorized "to dispose OF the terri
tory [land] or other property. Politi-
cal power is not, it would seem, within
the grant. This is too clear to be con.
troverted.
There is no specified power given to
Congress-; in the Constitution, which au-
thorizes the establishment Of a territori-
al government, except that which rela-
tes to the District of Columbia.
The ordinance "for the government
OF the territory Of the United States
northwest Of the river Ohio," was ap-
proved 9TH Of fAugust, 1887, which was
before the formation OF the Constitution
of the United States. That ordinance
provided for the first ond second grade
OF territorial governments which exten.
ded over the territory that includes the
present States of Ohio, Indiana, Illinois
and Michigan. Separate territorial
governments were formed under the or.
dinance, as the progress OF the popula-
ton demanded; and this fact may have
been supposed TO render any provisions
on the subject in the Constitution un.
necessary. On the 7th August, 1890,
the ordinance was modified by an act OF
Congress, SO as to adapt it TO the Con.
s!itution.
The relation of master and slave is de-
pendent upon the local law; and when
the slave escapes, by any means, to a
State where such relation does not ex-
ist, he is free, unless under general
law he may be recaptured by the mas.
ter. The Constitution, which authori-
,os raol,pofion of fnoitivos from labor