Weekly national intelligencer., 1857-06-27


BAR that notwithstanding the language Of the Constitu
ton and the long ne Of legislative and executive pre-
cedenis under it. three different and opposite views are
taken OF the power Of Congress respecting slavery in
the Territories.
One is, that though Congress can make regulation
prohibiting slavery in Territory, they cannot make
regulation allowing it another is that it can neither be
established nor prohibited by Congress, but that the
people of Territory, when organized by Congress- can
establish prohibit slavery while the third is that
the Constitution itself every citizen who holds
slaves under the laws of any State the indefeasable
right to carry them into any Territory and there hold
them as property.
No particular clause of the Constitution has been re-
erred to at the bar in support of either of these views
The first seems to be rested upon general considerations
concerning the social aud moral evils of slavery it's
atons TO republican Governments its snconsstency with
the Declaration Of Independence and with natural right
The second is drawn from considerations equally gene
raj concerning the right of self government and the
nature Of the political institutions which have been
tablished by the people of the United States
While the third said to rest upon the equal right
all citizens to go with their property upon the public do
main, and the inequality of regulation which would
admit the property of and exclude the property of
other citizens and inasmuch slaves chiefly held
by citizens of those particular States where slavery is
established 1T is insisted that regulation excluding
slavery from Territory operates, practically, to make
an unjust discrimination between citizens of different
States in respect to their and enjoyment of the
territory of the United States.
With the weight of either of these considerations,
when presented Congress influence its action this
court has no concern One the other may be justly
entitled to guide control the legislative judgment
what is needful regulation. The question here is
whether they sufficient to authorize this court to in
ser into this clause of the Constitution exception of
the exclusion or allowance of slavery, notfSad therein,
nor in any other part of that instrdmen TO engraft
on any instrument substantive exception found in
it must be admitted to be litter attended with great
difficulty and the difficulty increases with the impor-
tance OF the instrument and the magnitude and COM
thQ 1nfor sk,n
allow this to be done with the Constitution upon rea-
sons purely POLITICAL renders its judicial Interpretation
impossible, because Judicial tribunals, SUCH cannot
decide upon political considerations Political
nave not the requisite certainty to afford rules Of rd
cal interpretation They different in different men,
They are different in the at different times.
And when strict Interpretation of the Constitution
cordng to the fixed rules which govern the nterpreta-
ton OF laws is abandoned, and the theoretical opinions
OF individuals allowed control its meaning we
have no longer Constitution; we are under the gov
ernment Of individual men, who for the time being
power to declare what the Constitution is according
their own views of what 1t ought to When such
method of Interpretation of the Constitution obtains
In place of republican Government, with limited and
defined powers, we have Government which is merely
an exponent of the will of Congress; or what in my
opinion would not be preferable exponent of the in
dlydual political opinions of the members Of this court
If it can be shown, by any thing in the Constitution
Itself, that when 1T confers Congress the power to
make all needful rules and regulations respecting the
the allowance of slavery excepted if any thing
in the history of this provision tends show such
an exception intended by those who framed and
adopted the Constitution to be introduced into it. hold
1t to be duty carefully to consider and allow just
weight to such considerations in interpreting the posi-
tive text of the Constitution But where the Constitution
has said all needfu rules and regulations, / must find
something than theoretical reasoning to induce me
to say it did not mean all.
There have been eminent instances in this court close
y analogous to this one in which such attempt in
troduce an exception not found in the Constitution it.
self, has failed of success.
BY the eighth section of the first article Congress has
the power of exclusive legislation in all whatsoever
within this District.
In the case of Loughborough Blake (5 Whea., 324)
the question arose whether Congress has power i'm
pose direct taxes persons and property in this Dis
trct 1t was insisted that though the grant of power
was in its terms broad enough include direct taxation
it must be limited by the principle that taxation and re,
presentation inseparabe IL wo,i ynotSbe easy ti
any political truth better esablishsd or more fully
admitted In our country than that taxsn and repre-
sentaion must exist together We the war of
the Revolution to assert it, and it is Incorporated fun
damental into all American Governments. But however
true and important this maxim may be- il is not neces
sary OF universal application 1t for the people of
the United States who ordained the Constitution de-
eide whether 1t should should not be permitted to ope
rate within this District Their decision was embodied
in the words of the Constitutions and that contained
no such exception would permit the maxim operate
in this District this court interpreting that language
held that the exception did not exist
Again. the Constitution confers Congress power to
regulate commerce with foreign nations. Under this
Congress passed act the 22d of December, 1907
unlimited in Duration laying embargo all ships
and vessels in the ports within the limits and iuris-
dicon of the United States No law of the United States
ever pressed severely upon particular States Though
the constuionality of the law contested with an
earnestness and zeal proportioned the runous effects
which were felt from it; and though as Mr. Chief JUS
tce Marshall has said, 60 Wheat, 1927 "a want of
acuteness in discovering objections to which
they felt the most deeprooted hostility will not be i'm
puted 10 those who arrayed in opposition to this
not that the fact that prohibited the use of
particular species of property belonging almost ex
cusively to citizens of few States and this indefinitely
supposed to show that it unconstitutional
judgment, relied on-that the power to regulate
commerce did not include the power annhlate COM
merce
But the decision that under the power to regulate
commerce. the power of Congress the subject was
restricted only by those excep ions and limitations con-
tanned in the Constitution and neither the clause in
question, which general grant of power to regu-
late commerce, any other clause of the Constitution
imposed any restrictions to the duration of an em
bargo unlimited prohibition of the use of the ship
ping of the country within the power of Congress
On this subject MIR. Justice Daniel speaking for the
court in the case Of United States Marigold 60 How
560,) says:
Congress by the Constitution vested with the power
to regulate with foreign nations however,
periods of high excitement application of
regulate commerce. such would embrace absolute prohib
on may have been questioned yet since the passage
embargo and non-intsrcourse laws aaieial
sanctions these statutes have received it scaly this
day open doubt that every subject falling cgitimatey
within the sphere of regulation NAV be partially
wholly excluded when either sal be demanded
by the safety the important interests of the entire nation
power conceded may operate ON any and every
subject of to which heiegars dcreton may
apply il" St
Il