Vermont phÅ“nix. [volume] (Brattleboro, Vt.) 1834-1955, 1857-03-28

er law he needful.
Judge Curtis argues that the practical con
struction placed for long series of years upon
provision should he decisive, especially, as in
this instance, il commenced almost coniempora-
neously with the adoption of the constitution
In 1889, Congress, acting under the constitu-
tion, provided for such changes in officers Of
the northwest territory as should be necessary
from the change Of government, ''in order that
the ordinance Of the United States in Congress
assembled for the government of The territory
northwest of The river Ohio may continue 10 hare
full Geot," One article of this ordinance pro-
hibiied slavery. Fourteen members of the Con-
gress had been members of the convention, and
General Washington, the president of the con-
venton, signed the bill as president of the Uni
ted States Judge Curtis cites cases in which
ordinances were passed establishing govern
ments for other territories, in all points like
that of the northwest territory, THAT article
only excepted which forbds slavery" There
are eight distinct instances, beginning with the
first Congress and coming down to the year
lsis, in which Congress has excluded slavery
from the territory Of the United States and
six instances in which Congress organized gov
ernments Of territories by which slavery was
recognized and continued, beginning with the
first Congress and coming TO 1929. These acts
were severally signed by seven presidents, be-
ginning with Washington and coming regular
ly down to John Quincy Adams, thus includ-
ing all of Them who were in public life when
the constitution was adopted.
But notwithstanding the constitution and the
long line Of legislative and executive precedenis
under it, three different and opposing views are
taken Of the power Of Congress respecting slave
ry in the territories.
Zone is that, though Congress can make
regulation prohibiting slavery in a territory,
they cannot make regulation allowing it !;
another is, that il can neither be established
nor prohibited by Congress, but tina, the peo-
pie Of a territory, when organized by Congress,
can establish or prohibit slavery; while the
third is, that The constitution itself secures 10
every citizen who holds slaves under the laws
Of any state the ndefeasble right TO carry them
into any territory and there hold them as prop
erty.
"No particular clause of the constitution has
Of these views. The FIRST seems to be rested
upon general considerations concerning the So
cial and moral evils Of slavery, its relations to
republican governments, its inconsistency with
the declaration Of independence and with natu-
raj right. The second is drawn from consid-
erations equally general, concerning the right
OF self government and the nature Of the poiiti-
cal institutions which have been established BY
the people of the United States. While the
third is said 10 rest upon the equal right of all
citizens 10 90 with their proDertv unon The nnb-
which would admit the property OF some and
exclude the property Of other citizens and in
asmnch as slaves are chiefly held by citizens Of
those particular states where slavery is estab-
lisheJ, il is insisted that regulation excluding
slavery from territory operates practically 10
make an unjust discrimination between citizens
Of different states in respect 10 their use and en-
joyment Of the territory Of the United States. I"
Judge Curtis, after showing that under the
power of Congress TO regulate commerce" it
has assumed the power Of aboishng commerce,
as in the embargo and non-intercourse laws, says
that if power 10 regulate commerce extends TO
an indefnate prohibition of the use of all vessels
belonging so citizens Of the several states, may
operate, without exception, upon every subject
of commerce 10 which the legislative discretion
may apply it, upon what grounds can il he said
that the power 10 make all needful rules and
regulations respecting the territory Of the United
States is subject to an exception Of the allow
auce or prohibition OF slavery therein! Now
what positive prohibition exists in the consiitu-
tion which restrained Congress from enacting a
law in 1890 to prohibit slavery north of 500 3O'l
The only one suggested is that change in the
fifth article of the amendments of the constitu.
iion which declares that no person shall be de.
prived Of his life, liberty or property without
due process of law. What is the nature o.
slave property! Slavery being contrary io
natural right, is created only by municipal law
This is not only plain in itself, and agreed to by
all writer's on the subject, but is ihferable from
the constitution itself, and has been explicit,
declared by this court The constitution refer:
to slaves as ''persons held 10 service in on,
state under the laws thereof" Nothing cal
more clearly describe status created by muni
cipal law. The supreme court Of Kentuck,
has declared that -
slavery IS sanctioned by the laws OF this state
"and the right to hold them under municipal reg
"ulations is unquestionable. But We view this a.
ga right existing by positive law of municipal char
"acter, without foundation in the law Of nature,
''the unwritten common law
The status Of slavery must not only be ere
aied and measured by municipal law, but th'
powers, rights and obligations which grow ou
Of that status mnst be defined, enforced and pro
tected by such laws. Is it conceivable that tn,
constitution has conferred the right on ever,
citizen to become a resident on the territory o
the United States with his slaves and there Il
hold them as such, but has neither made no
provided for any municipal regulations which
are essential to the existence of slavery Is |
not more rational TO conclude that they VIII,
framed and adopted the constitution were awar
that persons held to service under the laws o
a state are property only to the extent and un
der the conditions fixed by those laws-thai the,
must cease to be property when their owner
Voluntarily place them permanently within
r another jurisdiction, where no municipal law
on the subject of slavery exist If citizens o