Year: 1864

do. If this is the law, of what us
: are all these stringent provision


in favor of the accused; since the


can be set aside by the President Q


a General In the field.


After rebels are taken In arms


they cannot constitutionally be hung


or otherwise punished as traitors


until after trial and conviction. NJ


more can they be deprived of thei


property; than of their lives withou


such conviction, since the same claus,
lin the Constitution protects botl


alike. The Constitution protects pro


perty without discriminating between
one kind of property and another.


Laws creating rights Of property
are municipal laws, and hence are ex
clusively within state jurisdiction
No power is granted to the United
States to declare articles as things
to which men may claim the title as
right, called property. The Consti-
tuition assumes that there is such a
right as the right of property, and
seeks to protect it. Hence Congress
has no power under the constitution,
to declare what shall be, or what shall
not be property in Massachusetts, or
South Carolina. That depends upon
the laws of the respective States.
Each state, for itself, settles the
things, in which a right of property
can be claimed within its jurisdiction;
for it is well settled rule of law,
that, the laws of one state can have
the force of law, only within its own
territory, and not beyond the same,
only as by the law of comfy, another
state may by its own law, give force
to it. 1t was on this ground that
Lord Mansfield based his famous
decision in the Summerset case,
holding a slave free the moment he
came within the jurisdiction of Eng
lish law. 1t was on the admitted
principal of this case, that it was
deemed necessary to insert the clause
in relation to fugitives from labor, as
slaves; otherwise slave escaping in
to free state, would have been free
as much as he is now, when coming
with the consent of his owuer. In
the latter case, there is no Injunction
that the slave should be returned to
his master What is trne of slave
property, is true of all other property;
the right of any one to it, is to be set
tied by the law of the place where it
is situate. In this respect, there is
no difference between title to horse
and title to slave Whatever is by
the law of any State recognized as
property, is such under the constitu-
ton of the United States, and en-
titled to its protection while within
the jurisdiction of the State. 1t is
by these laws of the respective States
that the courts of the United States
are governed in deciding on ques-
tions of property. Unless this was
the law, Congress might interfere
with rights of property in Massachu-
sets as well as in South Carolina,
and declare that men should have no
right of property in horses any more
than in men. The same constitution
which protects the right to the one in
Massachusetts, against the action of
the general government, protects the
right to the other in South Carolina,
The right of property is creature of
positive law of the recognized law Of
each county or State, and in this
sense the common law is as much a
positive law as the Statute law is. /
am not here speaking of the rightful-
ness of slavery, or its morality. On
that subject, l have some very de-
cided opinions; and. horse stealing is
as consistent as slave trading and
slave owning. I could as consistent
ly engage in the one as the other
But positive law, the law of State
is one thing, and my opinions are
another. AS a man l must be
governed by the one; as Judge I
must follow the other. If the valid
ity of laws was dependent on the
opinions of individuals, we should be
involved in inextricable confusion.
Many minds regard statutes of limit
ations and frauds as immoral, but thai
does not affect their validity.


Slavery then, in Its relation to the
general government stands on the
same footing as any other species Of
property. Congress can do nothing
with the one, which it cannot do with
the other. Itspower to forfeit the title
to horse is just the same as it:
power to forfeit the title to slave
Such is clearly the constitution, which
we have sworn to support. Whethel
we wish it were otherwise or not, il
now a matter ofno importance. Suci


as it is we must abide by. it, ant


carry it out in perfect good faith
whatever may be the consequence t.


which it brings us.


tits this constitutional restriction
over the powers Of Congress-it il
this want of power in the genera
government which hampers its actor
over the subject of slavery, and owe
the punishment of traitors. No
: can it be claimed that the Presiden
, or the Generals in the field can d,
what the combined action of Con
= gress and the President could no
: do. The President and the General
/ act under an authority delegated Il
- A.