Vermont watchman and State journal. [volume] (Montpelier, Vt.) 1836-1883, 1857-04-24
Political.
is SLAVERY NAT1ONALi-THE DRED
SCOTT CASE
~ II. q Il
Mr.. JUSTICE OUTFITS.



quently that this is a case to which the ju-
dicial power of the United States docs not
extend, they have gone to examine the mer-
its Of the case they appeared ON the trial
before the Court and jury upon the issues
joined on the pleas in bar ;-and go have reach
ed the question of the power of Congress TO
pass the act Of 1920. On so grave a subject
as this. feel obliged to say that, in my opin-
ion, such an exertion Of judicial power trans
cends the limits of the authority of the Court,
as described by its repeated decisions, and
as acknowledged in this opinion of the ma
jority of the Court
In the course Of that opinion it became
necessary TO comment ON the case of Le Grand
VS.. Damrell. reported in Peters, 66f. In
that case a bill was fled by one alleged TO be
a citizen of Maryland against one alleged TO
be n citizen of Pennsylvania The bill stated
that the defendant was the son of white
man by one Of his slaves, and the defendants
father devised to him certain lands. the title
to which was pat in controversy by the bill.
These facts we're admitted in the answer and
upon these and other facts the Court made
its decree founded on the principle that de
wise Of land by a master to a slave was by
implication. also a bequest of his freedom. -
The facts that the defendant was not only of
African descent, but was born a slave, were
not only before the Court, but entered into
the entire substance of It's inquiries. Tho
opinion of the majority of my brethren in
in this case disposes Of the ease Of Ie Grand
VS.. Damrcll, by saying, in substance. that as
the fact that the defendant was born a slave
only came before this Court on the bill and
answer. IL was then too late 20 raise the ques-
ton of the personal disability of the party,
and therefore the decision Is altogether inap-
plicable in this case
In this ] concur. Since the decision OF this
Court in Living tom vs. Story. ! / Peters 35l,
the law has been settled that when the deca-
tion OF bin contains the necessary avcrments
OF citizenship. this Court cannot look at the
the record TO sec whether those avermcnts
arc true except so far as they arc put in issue
by plea TO the jurisdiction. In that case the
defendant denied, by his answer, that Mr..
Livingston was a citizen OF New York, as be
had alleged in the bill Both parties went
into proofs This Court refused 70 examine
those proofs with reference TO the personal
disability of the plaintiff This IS the settled
law Of the Court affirmed SO lately as Shep
herd VS. Graves. How, ~. But do not
understand this TO be rule which the Court
may depart from at its pleasure If it be
suitors. If il removes from the latter the
power to take any objection to the personal
disability of a party alleged by the record to
be competent, which is not shown by plea
to the jurisdiction, it is because the Court arc
forbidden by law to consider and decide on
objections so taken. do not consider it 20
be within the scope Of judicial power of the
majority Of the Court TO pass upon any qlcs-
ton respecting the plaintiff citizenship in
Missouri, save that raised by the plea TO the
jurisdiction. and | do not consider any opn-
ion of this Court, OF any Court, binding when
expressed ON a question not legitimately be-
fore il. carroll Vs. Carroll. l6 How. 27j.1-
The Judgment OF this Court is that the case
is to be dismissed for want of jurisdiction.
Into that Judgment according to the settled
course of this Court, nothing appearing after
a plea to the merits can enter. a great
question of constitutional law. deeply affect
ing the peace and welfare Of the country, is
not. in my opinion, dt subject to be thus
reached.
CONGRESS HAS POWER TO PROHIBIT SLAVERY
IN THE rERRIroRIrs.
/ have thus far assumed, merely los the
purpose of the argument that the laws of the
United States respecting Slavery in this terri
tory were unconstitutionally enacted by Con-
gress. 1t remains TO inquire whether they
are Institutional and binding laws.
In the argument Of this part of the case at
bar, it was justly considered by all the coun-
sci to be necessary to ascertain the source of
the power Of Congress over the territory be-
longing to the United States. Until this is
ascertained it is not possible to determine the
extent Of that power On the one side it was
maintained that the Constitution contains no
express grant Of power to organize and gov
ern what is now known TO the laws of the
United States a Territory. That whatever
4 power of this kind exists is derived by imph
cation from the capacity of the United States
to hold and acquire territory out Of the limits
Of any State, and the necessity of its having
some government.
On the other side it was insisted that the
Constitution had not failed to make an eX-
press provision for this end, and that it is
found in the third section of the fourth arti-
Gle of the Constitution.
To determine which of these is the correct
view it is needful to advert TO some facts re-
spectng this subject which existed when tho
/ Constitution was framed and adopted. 1t will
be found that these facts not only shed much
light on the question whether the trainers of
the Constitution omitted to make provision
concerning the power of Congress to organize
and govern the Territories. but they will also
aid in the construction Of any provision which
!, may have been made respecting this subject.
Under the Confederation, the unsettled ter
( ritory within the limits Of the United States
had been subject of deep interest. Some
of these States insisted that these lands were
within their chartered boundaries. and that
} by their independence they had succeeded to
the title of the Crown to the soil. On the
other hand, it was argued that the vacant
lands belonging to the Crown had been ac-
quircd by the United States by the war car
q ried ON by them under common government
and for the common interest.
. This dispute was further complicated by
r unsettled questions Of boundary among sew
. eral States. 1t not only delayed the access
! sion of Maryland to the Conlederacy, but, at
, one time, seriously threatened its existence.
j. (6 Jour. of Congress, 20s, 4l2.) Under the
pressure of these circumstances Congress
earnestly recommended to the several States
a cession of their claims and rights to the
z United States. Is Jour. of Cong, 442.) And
before the Constitution was framed, it had