Kenosha tribune & telegraph. [volume] (Kenosha, Wis.) 1856-1859, 1857-03-26
Judge McLean's Opinion VS.. Taney.

The opinion which Judge Mclean
gave in opposition to the judgment of
Chief Justice fancy, is one ofthe ablestl
IN the judicial records of our country
He tears the fiimsy reasons of Taney to
pieces, and show to what an utter bar
barism this decision win lead our Re
public.
With respect to the general question
of the right of citizenship as appertain-
ing to colored persons, Judge Mclean
shows that the United States have not
been fastidious about comforting that
right. Under the late treaty with Mex
leo we have made citizens "of all grades,
combinations and colors,' without even
the forms of naturalization. Several
States, both slayeholding and non-slave-
holding, have recognized c0tored men
as citizens. In the admission of Louis
ana and Florida, the same thing was
done as in the recent treaty with Mexi-
co, and no one supposed, and no Court
ever held, that those thus admitted did
not become citizens. They have enjoy
ed and exercised the privileges and the
rights of citizens. Judge Mclean emu
merates the following as the principles
involved in the bred Scott Case:
l. The locality of Slavery settled by
this Court and the Courts Of the State.
?. The relation which the Federal
Government bears to slavery in the
States.
3. The power of Congress to estab-
fish territorial governments, and to pro-
hibit the introduction of slavery therein.
4. The effect of taking slaves into a
new State or Territory, and so holding
them, where slavery is prohibited.
5. Whether the return of a slave I'M
der the control of his master, after be-
ing entitled to his freedom, reduces him
to his former condition.
6. Are the decisions of the supreme
court Of Missouri, on the question before
us, binding on this Court, within the rule
adopted.
l. On the first point he insists that
the civil law throughout the continent of
Europe, is that slavery can only exist
within the territory where it is establis-
ed, and if slave escapes, Or is carried
beyond such territory, his master can
not reclaim him unless by virtue of some
express stipulation. Not single Euro
pean mutton considers itself bound, eth
er by civil law or the law of nations, to
return a fugjtice stare to his master or
o,cner. High authorities are quoted in
support of this great principle, the judg-
ment of Mansfield, on behalf of the court
of Kings Bench, in the Somerset case,
which was deliberately argued, and was
held by the bench from term to term,
having remained the law of England for
nearly century. So by the Court of
Appeals in Kentucky it was held that
slavery is sanctioned by the laws of
this State, and the right to hold slaves I'M
der our municipal law is unquestionabe.
But we view this right as exis ting by
law Of a character, without foundation
in the laws Of nature or the unwritten
and common law"
2. Judge Mclean enters upon the
consideration of the second point with
the declaration that slavery is emphati-
cally a state institution, and SAYS that
the only connection the Federal Govern
ment has with slaves in a State. arises
from that provision in the constitution
the restoration of fugitives.
He further shows that in the formation
of the federal constitution, care was Ia
ken to confer no power on the Federal
Government to interfere with this insti-
tuition in the states. In the provision
respecting the riav trade, in fixing the
ratio OF representation, and providing
for the reclamation oftugitives, from la
Dor, SidCeS aeere retcred to as persons.
and i'll no other respect are they consid-
cred in the constitution. There is no
BILE sentiment i'll this part of Judge Nc
Leans decision-''I prefer the LIGHTS Of
Madison, Hamilton and Jay as a means
of constituting the constitution in all its
bearings, rather than to look behind that
period into traffic which is now de-
clared to be piracy and punished with
death bv christian nations" He adds
"All slavery has its origin in power, and
is against right"
3. The power in Congress to estab-
fish territorial governments and to pro-
hibit the Introduction of slavery therein
is the next point considered Judge
McLean'S argument on this point is We
ry forcible and lucid 1t would be mar
red by abridgement. His conclusions
are that the federal government has the
right to prohibit slavery in territories,
and that the Missouri compromise was
entirely constitutional.
4. What is the effect of taking slaves
into a state or territory, and so holding
them, where slavery is prohibited?-
Judge Mclean here introduced the case
of Brigg VS., the State Pennsylvania, in
which the court after affirming the doc
trine that slavery was "a mere munich
raj regulation" said, at is manifest
form this consideration, that if the con
stitution had not contained the clause
the rendition Of fugitives
from labor, every non-slaveholding state
III the Union would have been at liberty
to have declared free all runaway slaves
coming within its limits, and to have
given them entire immunity and protec-
ton, against the claims of their masters"
But if slave be taken by his master in
to State or Territory where slavery is
such slave cannot be said to
have left his master, and cannot legally
be coerced to return when he deserts
him.
Judge Mclean, under this head Of his
opinion, devotes some attention to the
common argument that slaves being
the master may take them in
to free state or territory under the
aame protection and rights as he would
other property. He holds that the ar
gument is unsound; and that the color
ed persons are made property By State