New Orleans daily crescent. [volume] ([New Orleans, La.]) 1851-1866, 1856-05-26
IFrom the National Intolligencet, May i5.l
fudge McLean's Views.
WASHINGTON, May IA, 1856.

l. NaS - -
WASHINGTON, May A. 1856.
To the Editors of the National Intellgenccr:
Gentlemen: As the communication OF Judge
Mclean, which appeared in your issue Of I'D OF
December l847, is much looked for and OF gene
raj public interest, will you not obGge me and many
Of your readers by republishing it General Cass has
made alluslon to it in his speech of the day before
yesterday and hence it is desirable that the public
should know what the full scope Of the Judges views
are. 'Essa7s $3.50 ~ 1850 RTA 5NEF1
1.-THE following is the article alluded to above, of
which Mr.. Justice Mclean is the reppted author;
and as he has been referred to as such both on the
floor Of Congress and in the public press, without
contradiction, we presume there is mproprety in
our permitting him to be named as the writer.
| a...,7 Editors Nat. INTEL.
@ From the National Intellgencer of Dec 22d 1871
| Has Congress Power to Institute Slavery !.
The first article Of the Constitution declares that
all Legislative powers herein granted shall be vested
Congress of the United States, ETC. This limits the
legislative action of Congress to the subsequently
enumerated powers. ss-i
In the eight section of the first article Of the Con-
stitution it is declared that Congress shall have power
" to exercise exclusive legslatonin all cases what
soever over such District not exceeding ten miles
square, may by cesson of particular States and the
acceptance of Congress become the seat of the Gov
eminent of the United States, and to exercise like
authority over all places purchased by the consent of
the Legislature of the State in which the same shall
yards, and other needful buildings" ''
Under this provision the cesson of the District of
Columbia was made, within which territory slavery
had been long sanctioned so that the power of Com
gress to institute it within the District did not arise
and no one it is supposed would contend that within
the cession Of non-slaveholding State for forts,
etc, Congress could establish slavery.
In no part of the Constitution are slaves named
referred to as property they designated as per-
sons In the second section of the first article which
apportions representatives and direct taxes the words
three-tifths of all other persons include slaves.
They are referred to in the ninth section Of the same
article which declares that the migration or mpor-
taton of such persons any Of the States exist
ing shall think proper to admit shall not be prohibited
by the Congress prior to the year eighteen hundred
and eight and also in the second section of the
fourth article, in relation to fugtves from labor In
no other part Of the Constitution is there any refer
enCe to Slaves. so F,sz
In the third section of the fourth article it is de-
clared that Congress shall have power to dispose of
and make all needtu rules and regulations respecting
the territory other property belonging to the United
States" The power here given is limited to the reg
ulation of the property of the Government, and may
be exercised well within State Territory. II
gives no express power to institute Territorial Gov
ernment to adopt regulations beyond the specific
objects of the grant Congress are authorized ''to
dispose of" the territory CANDY other property.
/ Political power is not, it would seem, within the
grant. This is considered too clear to be contro-
| verified. u.
There is specific power given to Congress in the
Constitution which authorizes the establishment of a
Territorial Government except that which relates to
the District of Columbia.
The ordinance for the government of the territory
of the United States northwest Of the river Ohon
was approved It'll Of August, 1887 which was before
the formation OF the Constitution of the United
States. That ordinance provided for the first and
second grades of territorial government which ex-
tended over the territory that includes the present
! States Of Ohio, Indiana, Illinois and Michigan Sep
arate Territorial Governments were formed under the
rflgfiP t,n
This provided for the government of all the territory
coded to the Union at the adoption of the Constitu
ton and this fact may have been supposed to rem
der any provision on the subject in the Constitution
! unnecessary. On the 9TH August, 1883, the ord-
nance was modified by an act Of Congress SO as to
| adapt it to the Constitutions.
On the 18th February. 1870, North Carolina coded
to the Union territory which constitutes the State
of Tennessee which was accepted by act OF Congress
on the I'd of April ensuing. In the act of cession
among other provisions, it was stipulated that no
regulation made or to be made by Congress shall tend
to elnancipate slaves and on the 2Gth Of May, $780,
blythe act of Congress, the ordinance of 1851 with
certain exceptions in the act oil cession adopted
tor the government of the territory of the United
States south of the river Ohio"
The first annexation of foreign territory to the Uni
ted States was Louisiana, within which slavery eX
listed under the French and Spanish Governments
Florida, which was subsequently annexed, was also
slave territory Texas was slave State.
1fany part of Mexican territory shall be annexed
as slavery is not sanctioned in Mexico, it must come
into the Union as free territory and the important
question arises whether Congress have power to make
it slave territory
No question is better settled in this country than
that slavery exists in State by virtue of the local
law that the power the subject is exclusively
vested in the State and that Congress, except as to
the recaptre of slaves exercise power over it.
The relation of master and slave is dependant l,pon
the local law; and when the slave escapes by any
means to State where such relation does not exist he
is free unless under general law he may be recap
tured by the MASTER The Constitution, which al-
thOrizes the reclamation of fugitives from labor is
the law of the Union on this subject. There is no
principle in the laws of nations nor in the common
law, as between soycregnties, which authorizes a
reception Of fugitive slave. These principles will
not be disputed by any one who has examined the de-
cisons of the courts Of the United States.
Under the articles OF confederation there was q
provision for the return of fgives from justice, but
none in regard to abscondng slaves There was,
therefore, obligation on free State unless imposed
by It's own law, to deliver up slave nor there
any legal means through which the master could claim
the fugitive The inconvenience and collision which
frequently from this state of things led to the
above provision in the Constitution.
The power to institute slavery belongs exclusively
to the community in which it exists. In the language
of Chief Justice fancy, Tin Groves Slaughter, Is
Peters, 50S) State has right to decide for itself
whether it will will not admit slaves to be brought
within its limits from another State either for sale or
for any other purpose and also to prescribe the
ner and mode in which they may be introduced, and
to determine their condition and treatment; and this
action cannot be controlled by Congress, either by
virtue Of its power to regulate commerce or by virtue
of any other power conferred by the Constitution of
the United States''
And in the caes Of Prigg VS.. the Commonwealth of
Pennsylvania, ZIG Peters, 6ll) the Supreme Court
say: The state of slavery is deemed to be a mere
municipal regulation, founded upon and limited to
the range of the Territorial laws and it is manifest
from this consideration that, if the Constitution had
not contained the clause for reception every non
saveholdng State in the Union would have been at
liberty to have declared free all runaway slaves com.
ing within its limits, and to have given them entire
immunity and protection against the claims of their
masters.'' lt-I
The true construction of the Constitution is that
implied powers can only be exercised in CARRYING
into effect specific power And this application is
limited to such measures shall be appropriate to
the object. This is admitted and safe rule of con-
strncton. 1t is believed to be the only one which
has been sanctioned by statesmen and juriss. Pow
ers exercised beyond this are not derived from the
Constitution, but must depend upon an unlimited
discretion. And this is despOtisnl. "a
Now, there is no specific power in the Constitution
which authorizes the organization of Territorial
Government. Such power was given in relation to
the District of Columbia and it was equally neces.
sary in regard to other Territories But this power
be implied from the specific power given to regulate
the disposition of the public lands, st must under the
above rule be limited to suitabeto the end in
view. Ii Congress go beyond this in the organization
OF Territorial Government, they act without mita-
ton, and may establish monarchy
Admit that they may organize a Government which
shall project the lands t,o