Weekly national intelligencer., 1857-06-27

u,
positive prohibitions to egsate which found in the
/ Constitution. a
confess myself unable to perceive any difference
whatever between my opinion of the general extent
OF the power of Congress and the opinion of the majority
of the court that consider it dervable from the
express language of the Constitution while they hold it
to be silently implied from the power acquire territory
Looking at the power of Congress the Territories
OF the extent just described, what positive prohibition
exists in the Constitution which restrained Congress from
enactng law in 1920 prohibit slavery north of thirty
six degrees thirty minutes north latitude?
The only suggested is that clause in the fifth
Gle of the amendments of the Constitution which declares
that person shall be deprived of his life, liberty,
property withoutadue process of law. will pro-
oeed 70 examine the question whether this clause is
titled to the effect thus attributed 10 it, 1t is necessary
first to have clear view of the nature and incidents of
that particular species Of property which is now in
| question.
by municipal law This is only plain ITSELF and
agreed by all writer's the subject nferabe from
the Constitution, and has been explicitly declared by this
court The Constitution refers to slaves persons
held to service in State under the laws thereof
Nothing can more clearly describe status created by
municipal law In Prigg Pennsylvania (1O Pet, 611)
this court said The state Of slavery is deemed to be
municipal regulation founded on and limited to
the range Of Territorial laws In Rankin o. Lydia (2
Marsh, r. 470 the Supreme Court of Appeals of Ken
! lucky said: s s
Slavery is sanctioned by the laws of this State and the
rgat to hold them under municipal regulations is un
questionable But view this right existing by posi-
tive law of municipal character without foundation in the
law OF nature or the unwritten common law
not acquainted with any case or writer question
ing the correctness of this doctrine (See also Burpe
COL and For. Laws, 73874 where the authorities are
lcollected.)
The status of slavery necessarily always attend
ed with the same powers the part of the master The
master is subject to the supreme power of the State
whose will controls his action towards his slave and this
control must be defined and regulated by the municipal
law In one State as at one period of the Roman law it
may put the life of the slave into the hand of the
Others as those of the United States which tolerate
slavery, may treat the slave person when the
ter takes his m while in others the law may recognise
right OF the slave to be protected from cruel treatment
In other words the status of slavery embraces every
dtion, from that In which the slave is known to the law
simply as chate with civil rights, that in which
he is recognised person for all purposes the
compulsory power of directing and receiving the fruits
OF his labor Which of these conditions shall attend the
status of slavery must depend the municipal law which
creates and upholds it.
And not only must the status of slavery be created and
measured by municipal law but the rights powers and
obligations which grow of that status must be de-
hned protected and enforced by such laws. The liza
bty of the master for the and crimes of his slave
and OF third persons for assaultng njuring har
boring or kdnapplng him. the forms and modes of eman
cpation and sale their suhection the debts of the
MASTER succession by death the MASTER suits for free
dom the capacity of the slave be party to suit or to
Witness with such police regulations have existed
in all civilized States where slavery has been tolerated
among the subjects upon which municipal legislation
becomes necessary when slavery is introduced
Is 1t conceivable that the Constitution has conferred
the right every citizen to become resident the
territory of the United States with his slaves and there
to hold them such, but has neither made provided
any municipal regulations which are essential to the
existence of slavery?
] Is it not rational to conclude that thew who
framed and adopted the Constitution were aware that
persons held to service under the laws of State are
property only to the extent and under the conditions
fixed by those laws; that they must be available
| fairly vr1a
permanently within another jurisdiction, where no mu-
nicipa laws the subject of slavery exist and that
being aware of these principles and having said nothing
to interfere with or dlsace them compel Congress
to egslae in any particular manner on the subject and
having empowered Congress make all needful rules
and regulations respecting the territory of the United
States, their intention to leave the discretion of
Congress what regulations, if any, should be made
cerning slavery therein Moreover if the right exists
what are its limits and what arets conditions? If cti-
Gems of the United States have the right take their
slaves to Territory and hold them there as slaves
without regard to the laws of the Territory suppose
thisrght to be restricted the citizens of slave
holding States citizen of State which does to
slavery hardly be denied the power of doing
the thing And what law of 81 very does either
take with him to the Territory IF it be said be those
laws respecting slavery which existed in the particular
State from which each slave last what anomaly
is this Where else find, under the law of any
civilized country the introduce and permanently
continue diverse systems of foreign municipal law for
holding persons in slavery say, merely to intro
duce, but permanently to continue these anomalies
For the offspring of the female must be governed by the
foreign municipal laws to which the subject
and when any slave is sold passes by succession on
the death of the owner, there pass with him. by
species OF subrOgation and kind of unknown Jus
re, the foreign municipal laws which constituted regu-
lated and preserved the stas of the slave before his
exportation Whatever theoretical Importance may be
now supposed to belong to the maintenance of such
right feel perfect conviction that it would if
tried prove to be mpactcable in fact is in my
Judgment monstrous in theory.
consider the assumption which lies at the basis of
this theory to be 1und not in its just sense and
when properly understood but in the sense which has
been attached to it, That assumption s that the ter
rtory ceed by France acquired for the equal bene
fit of all the citizens of the United States agree the
position But it acquired for their benefit in their
collective not their individual capacities. 1t ac-
quired for their benefit, organized political society,"
subsisting the people Of the United States under
the Constitution of the United States be administered
justly and mpartially and nearly possible for the
equal benefit of every individual citizen according
best judgment and discretion of the Congress- whose
power, as the Legislature of the nation which acquired
It, the people of the United States have committed its
administration. w hatever individual claims may be
founded local circumstances sectional differences
OF condition. cannot my opinion be recognised in this
COURT without arrogating to the judicial branch of the
Government powers committed to it; and which,
with all the unaffected respect feel for it. when acting
in its proper sphere, do not think it fitted to WELD
Nor, IN my Judgment will the position that prohi-
bon to bring slaves into Territory deprves any of
his property without due process of law
tion.
1t must be remembered that this restriction on the
the United States 1t borrowed from Magma Hdrtd
was brought to America by ancestors as part of
their inherited liberties and has existed in alahe States
usually in the very words Of the great charter 1t exist