cipal law, which, though derived from á common source, and recognizing in the main similar principles, yet in some respects had become unlike, and on a particular subject promised to be antagonistic.

"Their systems provided protection for life, liberty, and property, among their citizens, and for the determination of the condition and capacity of the persons domiciled within their limits. These institutions, for the most part, were placed beyond the control of the Federal Government. The Constitution allows Congress to coin money, and regulate its value; to regulate foreign and Federal commerce; to secure, for a limited period, to authors and inventors, a property in their writings and discoveries; and to make rules concerning captures in war; and, within the limits of these powers, it has exercised rightly, to a greater or less extent, the power to determine what shall and what shall not be property.

"But the great powers of war and negotiation, finance, postal communication, and commerce, in general, when employed in respect to the property of a citizen, refer to, and depend upon, the municipal laws of the States, to ascertain and determine what is property, and the rights of the owner, and the tenure by which it is held.

"Whatever these Constitutions and laws validly determine to be property, it is the duty of the Federal Government, through the domain of jurisdiction merely Federal, to recognize to be property.

"And this principle follows from the structure of the respective Governments, State and Federal, and their reciprocal relations. They are different agents and trustees of the people of the several States, appointed with different powers and with distinct purposes, but whose acts, within the scope of their respective jurisdictions, are mutually obligatory. They are respectively the depositories of such powers of legislation as the people were willing to surrender, and their duty is to co-operate within their several jurisdictions to maintain the rights of the same citizens under both Governments unimpaired. A proscription, therefore, of the Constitution and laws of one or more

States, determining property, on the part of the Federal Government, by which the stability of its social system may be endangered, is plainly repugnant to the conditions on which the Federal Constitution was adopted, or which that Government was designed to accomplish. Each of the States surrendered its powers of war and negotiation, to raise armies and to support a navy, and all of these powers are sometimes required to preserve a State from disaster and ruin. The Federal Government was constituted to exercise these powers for the preservation of the States, respectively, and to secure to all their citizens the enjoyment of the rights which were not surrendered to the Federal Government."

On page 516, the same judge observes: "This court have determined that the intermigration of slaves was not committed to the jurisdiction or control of Congress. Wherever a master is entitled to go within the United States, his slave may accompany him, without any impediment from, or fear of, congressional legislation or interference. The question then arises whether Congress, which can exercise no jurisdiction over the relations of master and slave within the limits of the Union, and is bound to recognize and respect the rights and relations that validly exist under the Constitutions and laws of the States, can deny the exercise of those rights, and prohibit the continuance of those relations, within the Territories. And the citation of State statutes prohibiting the immigration of slaves, and of the decisions of State courts enforcing the forfeiture of the master's title in accordance with their rule, only darkens the discussion. For the question is, have Congress the municipal sovereignty in the Territories which the State Legislatures have derived from the authority of the people and exercise in the States? And this depends upon the construction of the article in the Constitution before referred to. And, in my opinion, that clause confers no power upon Congress to dissolve the relations of the master and slave on the domain of the United States, either within or without any of the States."

1

Referring probably to Groves v. Slaughter, 15 Peters, 449.

On the supposition then that the national Government does hold, in and for the Territory, those powers which a State Government holds in and for a State,' it does not appear that Judge Campbell would agree with the Chief Justice, that the slaveholder's right is protected there by the private law of the Constitution, operating like a bill of rights in the guarantee of private property.

§ 498. Mr. Justice Catron, on pages 519-523, maintains, as firmly as any other member of the court, that the only valid legislation operating in the Territories is that proceeding from power held by Congress, and appears to be of the opinion that all the ordinary powers of a State Government have, by the words of the Constitution, been granted to Congress. But Judge Catron finds that the power of Congress in the Territory of Louisiana is restricted by the conditions of the treaty, of cession, made with France in 1803 (see pages 524-528). This doctrine, which is the ground principally relied on by Judge Catron in the decision of the question, will be further considered in a later portion of this work.

But notwithstanding his view of the powers of Congress in the Territories, as above stated, Judge Catron appears at the same time to be, in some degree, with either Judge Daniel or Judge Campbell in their doctrines of the limitation of the power of Congress in all the Territories, as respects a right of "equality" belonging to the States or to the citizens of the States.

On page 526 of the report, after referring to the cessions. made by Georgia and North Carolina of western territory, and to the fact that no guaranty was required by Georgia from the United States for the protection of slave property, Mr. Justice Catron says, "The Federal Constitution was relied on to secure the rights of Georgia and her citizens during the Territorial condition of the country. She relied on the indisputable truths, that the States were by the Constitution made equals in political rights and equals in the right to participate in the common property of all the States United, and held in trust for them. The Constitution having provided that the 'citizens of

each State shall be entitled to all privileges and immunities of citizens of the several States,' the right to enjoy the territory as equals was reserved to the States, and to the citizens of the States respectively. The cited clause is not that the citizens of the United States shall have equal privileges in the Territories, but the citizen of each State shall come there in right of his State, and enjoy the common property. He secures his equality through the equality of his State, by virtue of that great fundamental condition of the Union, the equality of the States.

"Congress cannot indirectly what the Constitution prohibits directly. If the slave-holder is prohibited from going to the Territory with his slaves, who are parts of his family in name and in fact, it will follow that men owning lawful property in their own States, carrying with them the equality of their State to enjoy the common property, may be told, you cannot come here with your slaves, and he will be held out at the border. By this subterfuge, owners of slave property, to the amount of thousands of millions, might be almost as effectually excluded from removing into the Territory of Louisiana north of thirty-six degrees thirty minutes, as if the law declared that owners of slaves, as a class, should be excluded, even if their slaves should be left behind. Just as well might Congress have said to those of the North, you shall not introduce into the territory south of said line your cattle and horses, as the country is already overstocked, nor can you introduce your tools of trade, or machines, as the policy of Congress is to encourage the culture of sugar and cotton south of the line, and so to provide that the Northern people shall manufacture for those of the South, and barter for the staple articles slave labor produces. And thus the Northern farmer and mechanic would be held out, as

The clause in Art. iv, sec. 2, "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." It would appear from this that, in the judge's opinion, the slave-holder's right under the law of his former residence is guaranteed even when the Territory becomes a State, and if so, it must be equally guaranteed in all the older States.

Referring, apparently, to the clause above cited.

Here a somewhat different theory of the right of slave-holders is intimated, that slavery is a relation between persons, one of the relations of family, like that of husband and wife, parent and child. It can hardly be meant that in the slave-holding States wives and children are property.

the slave-holder was for thirty years, by the Missouri restriction.

"If Congress could prohibit one species of property, lawful throughout Louisiana when it was acquired, and lawful in the State from whence it was brought, so Congress might exclude any or all property."

And in concluding the opinion,-"My opinion is, that the third article of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be repealed by Congress.

"And, secondly, that the act of 1820, known as the Missouri compromise, violates the most leading feature of the Constitution, a feature on which the Union depends, and which secures to the respective States and their citizens an entire EQUALITY of rights, privileges, and immunities.

"On these grounds, I hold the compromise act to have been void."

And although Judge Catron does not allude to those clauses of the Constitution which operate as a bill of rights and as private law, yet it might, from the portion of his opinion before cited, be inferred that he should, in consistency, have agreed with the Chief Justice in holding that slaves are, by them, protected as property, in the same degree as domestic animals and inanimate chattels; that is, if he admits that the guarantees of private rights, in the Constitution, operate in the Territories, which, however, does not appear from his opinion. For he finds. the restriction in a clause in the treaty which secured the inhabitants in the "free enjoyment of their liberty, property, and religion." And this, the Judge supposes, applies to all slaveholders there; whether they were resident under the former dominion, or are those who have acquired their rights through them, or are immigrants from the States. (See pp. 524, 525.) And it would seem that, in determining what is or is not property in view of the treaty provision, the same criterion should be adopted which, according to the Chief Justice, determines slaves to be property in view of the constitutional guarantee.

§ 499. In the same case Justices McLean and Curtis maintained the power of Congress to prohibit slavery in the Terri