Richmond enquirer. [volume] (Richmond, Va.) 1815-1867, 1859-04-15
For tie Eng,

tHhS.
COMMUNICATIONS.
For tie Enquirer.
The Right Of a Slave-0wner to have this Property
Protected in a Territory.
The proposition which is suggested in these
let;ers-the proposition, Ia cit: that the
right of property in a negro in a terri
tory, cannot be rightiully interfered with or
impaired by Congressional, State or Terrific
rial legislation, has its citadel in, and sends out
its shield from. the provisions Of the Federal
Constitution which is profeSsedly and confess
edly the supreme law of the land-the rhole
land over which its jurisdiction is extended
The chief provision Of that instrument. and in
which the cognate provisions have their source
and from which they derive their strength and
security. is the 4th section of the 18th article,
that 1.-The United States shall guarantee to
every State in this Union a republican form Of
government" dc. The chief provision Of the
kindred ones applicable to the proposition sug-
gested and insisted on, is in the 9Th article Of
the amendments, and is that "no person" shall
be deprived Of life, liberty. or property, with
out due process of law" 1t is not out of my
mind, as another provision, that private pro-
perty, that is, property not belonging to the
State, but belonging to the individual citizen.
may be taken by State authority for public
use, for Just compensation paid by the State To
the individual owner-or in the words Of the
provision-"nor shall private property be
taken for public use. without just compensa-
ton"
Now. let u few remarks on these two last
enumerated provisions be first produced in OK
PLANTATION of their purport. For public uxe"
1nac pot anhrara INV nnrnSsp nf cpclIrinC Is-
use. All emancipation M@s," Cor removing
the existence of negro slavery from q State,
ayow the purpose of securing tie disuse Of nc
qrocs as a property. In fuckers Blackstone
part l, vol. l, p. 305y it is said, by the learned
commentator, that the provision (which de-
clares that private property shall not be taken
for public use. without just compensation, was
probably intended to restrain the arbitrary and
oppressive mode Of obtaining supplies for the
army, and other public uses, BY inpresSment,
as was too frequently practiscd during the re-
volutionary war, without any compensation
whatever" 1t is. in fact, a war power in its
origin.
An act Of the General Assembly of Virginia,
passed December oath, 1892. defined the
power in terms that show it was primarily
a war power; and declared that it should be
exercised in the cases enumerated, and such
others only rs are, or may be, expressly allow
ed by lar, not by any enactment Of any lcgis-
lative body, but only by lac, which is a lcgis-
lative enactment in concert with civil liberty
and the rights of property. but not an enact
ment of any Legislature. either Congressional,
State or Territorial, in violation of the rights
of person or the rights Of property, as secured
by the supreme law. Enactments ~violative Of
these rights, in any particular, are not Mn.-
From such enactments (if il is not already pro-
yided in any case that can arise) the right Of
appeal to the courts ought to be secured by
suitable legislation, and the modes Of the re-
medal agency Of that right of appeal should.
in like manner, be ensured and made plain by
the competent authority.
will produce one other remark on this pro-
vision. This power of the State given by our
Constitutions to take private property for pub
lie use is but too often and ~thoughtlesSly con-
founded with that other power Of frequent ex-
ercise, to condemn private property for the
purposes Of constructing rail roads, canals,
bridges and the like. 1t is a distinct power.
II it is a right at all it is not derived from the
provision of the Constitution, on which these
remarks are made. 1t is u power traced by
most publicists to the feudal theory of tenure
under which the subject holds property liable
to be resumed by the despotic sovereign when
ever, in his opinion, necessity requires. Other
publicists trace this power to the right Of emf
nent domain. None, that | know Of, trace it,
for the purposes spoken OF, to the provisions Of
the Constitution | am remarking on. At any
rate it is as mquestionable that, to justify an
exercise of this power, the purpose for which
the private property may be lawfully taken
must be for public use, as it is uMquestioned
that the power, however derived, does exist
a-l x,o- la ax.rcico1 without violation IF pri
vate rights. 1t must be for public use. To
take property from one citizen and transfer it
to another is not a Legislative function. 1t is
equally clear that it must be for public use
To take away from the possessor 4 property
existing in him by the sanction of law, either
with or without Just compensation, without
his consent, not for the public use, but solely
to secure its disuse in the community, cannot
be a legislative function. otherwise than de-
structively of republican freedom.
Trusting that, in the light Of these remarks,
briefly presented without more citation Of au-
thorities to sustain their correctness, | will
proceed to remark, with more brevity on that
foregoing provision of the Constitution, ID est,
that no person shall be deprived Of las proper
ty without due process Of law. 1t is not every
process issued from courts, though pursuant to
decisions in conformity with the enactments Of
the law-making power. that is due process Of
lac. 1t may be an enactment which is un-
constitutional and voidablc. and to be avoided
by appeal to the courts by the person or party
on whom it claims by its unQucstionable pur-
port to be capable Of acting opprcSSively, or
only injuriously or distastefully to him. Such
an enactment is one to which no process is due
to the extent Of enforcement. because it is not
lac, and the Constitution only allows that one
may be deprived by due process Of lac. From
the conduct of the executive officer and from
the decisions Of the courts, | repeat. every
citizen ought to be, if he is not already, pro-
vided, in any case that can arise under Federal,
or State, or Territorial legislation, with the
right of appeal (within the maxim Ter non
curat de minimiis from such enactments, and,
indeed, from all enactments, to the end that
they may be tested by the courts whose pro-
vince it is to eXpound them, and whose power
it is to adjudgc them void for want of c%cnstitu-
tional competency in the Legislature 10 clothe
the object with the forms of law.
now reproduce the chief provision Of the
Federal Constitution, in which claim that the
proposition have advanced, i'll est, that the
right oil property in a negro owned in a terrific
~, cannot be rightfully interrupted by congress
sional, State or territorial legislation, finds its
footing and its defence. That provision is that
a Republican form of government is promised
to be secured by the Federal Government for
every State in the Union. The assurance is
given by the Federal Constitution. 1t is this
instrument, ~inaugurating our system, that de-
fines the meaning Of that term Republiean-all
the attributes embraced in it being promised
and assured to each State. 1t is not only that