him to the Territory? If it be said to be those laws respecting slavery which existed in the particular State from which each slave last came, what an anomaly is this? Where else can we find, under the law of any civilized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in slavery? I say, not merely to introduce, but permanently to continue, these anomalies. For the offspring of the female must be governed by the foreign municipal laws to which the mother was subject; and when any slave is sold or passes by succession on the death of the owner, there must pass with him, by a species of subrogation, and as a kind of unknown jus in re, the foreign municipal laws which constituted, regulated, and preserved the status of the slave before his exportation. Whatever theoretical importance may be now supposed to belong to the maintenance of such a right, I feel a perfect conviction that it would, if ever tried, prove to be as impracticable in fact, as it is, in my judgment, monstrous in theory.

"I consider the assumption which lies at the basis of this theory to be unsound; not in its just sense, and when properly understood, but in the sense which has been attached to it. That assumption is, that the territory ceded by France was acquired for the equal benefit of all the citizens of the United States. I agree to the position. But it was acquired for their benefit in their collective, not their individual, capacities. It was acquired for their benefit, as an organized political society, subsisting as 'the people of the United States,' under the Constitution of the United States; to be administered justly and impartially, and as nearly as possible for the equal benefit of every individual citizen, according to the best judgment and discretion of the Congress; to whose power, as the Legislature of the nation which acquired it, the people of the United States have committed its administration. Whatever individual claims may be founded on local circumstances, or sectional differences of condition, cannot, in my opinion, be recognized in this court, without arrogating to the judicial branch of the Government powers not committed to it; and which, with all the unaffected respect I feel for it, when acting in its proper sphere, I do not think it fitted to wield.

66

Nor, in my judgment, will the position, that a prohibition to bring slaves into a Territory deprives any one of his property without due process of law, bear examination.

"It must be remembered that this restriction on the legislative power is not peculiar to the Constitution of the United States; it was borrowed from Magna Charta; was brought to America by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the very words of the great charter. It existed in every political community in America in 1787, when the ordinance prohibiting slavery north and west of the Ohio was passed.

"And if a prohibition of slavery in a Territory in 1820 violated this principle of Magna Charta, the ordinance of 1787 also violated it; and what power had, I do not say the Congress of the Confederation alone, but the Legislature of Virginia, or the Legislature of any or all the States of the Confederacy, to consent to such a violation? The people of the States had conferred no such power. I think I may at least say, if the Congress did then violate Magna Charta by the ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be free, deprives citizens of their property without due process of law, what shall we say of the legislation of many of the slave-holding States which have enacted the same prohibition? As early as October, 1778, a law passed in Virginia, that thereafter no slave should be imported into that Commonwealth by sea or by land, and that every slave who should be imported should become free. A citizen of Virginia purchased, in Maryland, a slave who belonged to another citizen of Virginia, and removed with the slave to Virginia. The slave sued for her freedom, and recovered it; as may be seen in Wilson v. Isabel, (5 Call's R. 425.) See also Hunter v. Hulsher, (1 Leigh, 172;) and a similar law has been recognized as valid in Maryland, in Stewart v. Oaks, (5 Har. and John. 107.) I am not aware that such laws, though they exist in many States, were ever supposed to be in conflict with the principle of Magna Charta incorporated into the State Constitutions. It was cer

tainly understood by the Convention which framed the Constitution, and has been so understood ever since, that, under the power to regulate commerce, Congress could prohibit the importation of slaves; and the exercise of the power was restrained till 1808. A citizen of the United States owns slaves in Cuba, and brings them to the United States, where they are set free by the legislation of Congress. Does this legislation deprive him of his property without due process of law? If so, what becomes of the laws prohibiting the slave trade? If not, how can a similar regulation respecting a Territory violate the fifth amendment of the Constitution ?"

§ 502. The proposition, that the several States of the Union, or their citizens, are equally entitled to the use and benefit of the territory belonging to the United States; that the maintenance of slavery in every part of such territory is essential to enable the slave-holding States, or their citizens, to enjoy equally with the non-slaveholding States, or their citizens, that use and benefit of the territory; and that, therefore, Congress had no power to abolish or prohibit slavery in the Louisiana Territory is, as maintained by some of the Justices in this case, a judicial or legal rule, or a rule of law, one by which the rights and obligations of natural persons may be coercively maintained and judicially determined. And it is equally so whether the right which is asserted by the denial of the power is one vested in the individual citizens of the slave-holding States, or one vested in the slaveholding States as political persons; that is, whether the principle is applied as public or as private law. For in either case the obligations which are enforced, as correlative to the right which is maintained, are obligations of private persons.

§ 503. As such judicial or juridical rule, the proposition should be distinguished from one which may be expressed in very similar terms. This is, that the several States, or their citizens, are equally entitled to the use and benefit of the territory belonging to the United States; that the powers held by the national Government in respect to this territory are held under the obligation or trust of securing to the several States, or their

citizens, this equality; that the maintenance of slavery in every part of such territory is essential to enable the slave-holding States, or their citizens, to enjoy equally with the non-slaveholding States, or their citizens, that use and benefit of the territory; and that, therefore, Congress has no right to abolish or prohibit slavery in any of the Territories.

For whether the States, as political persons, or the individual citizens of the several States are the persons thus supposed to be equally entitled to the use and benefit of the territory, this proposition is only a political rule; or, negatively, it is not asserted as a rule of law, or one by which the rights and obligations of private persons are coercively maintained and judicially determined. The obligation, correlative to the right asserted, is one on the part of the Government as a political agent, and beyond the reach of the judiciary, which is a part of the same Government.

§ 504. It may be doubted whether a majority of those members of Congress, or persons in other spheres of public action, who have contended against the legislative prohibition of slavery in the Territories, have maintained the above proposition as a rule of law judicially applicable, or as being other than a political principle. The late Mr. Calhoun, who is well known to have insisted on the strictest construction of all powers of the national Government, when the question was of their exercise for the restriction of slavery, may on many occasions have advocated propositions which, as now read, may be understood to assert the doctrine as a rule of public law and one judicially cognizable.1

1 See Calhoun's Works, IV., 339-349, the resolutions presented by him in the Senate of the U. S., Feb. 19, 1847, and Mr. Calhoun's remarks on that occasion. Ibid. 535-541, Remarks on the proposition to establish territorial Governments in New Mexico and California, Feb. 24, 1849. Ibid. 562-565, in his speech, March 4, 1850, where Mr. Calhoun asserts to the fullest extent the power of Congress over slavery in the Territories, while claiming, as a constitutional right, its exercise in sustaining slavery. Compare remarks on Mr. Calhoun's position in this question and on the distinction of the doctrine, as a political rule or as a legal one, in the review of Dred Scott's case, in Monthly Law Reporter, April, 1857, p. 35. The resolutions of Feb. 1847, were as follows:

"Resolved, That the Territories of the United States belong to the several States composing this Union, and are held by them as their joint and common property.

Resolved, That Congress, as the joint agent and representative of the States of this Union, has no right to make any law, or do any act whatever, that shall directly, or by its effects, make any discrimination between the States of this Union, by which

But Mr. Calhoun appears to have asserted the doctrine as a political rule only. Such an interpretation of his language would not be inconsistent with the doctrine of private law which he is believed to have held, that slavery is legal, or judicially cognizable, in all territory belonging to the United States, independently of positive legislation; that is, even when no statute has been enacted on the subject by the possessors of sovereign power in and for the territory, (whoever they may be,) and that it will continue to be lawful there, until prohibited by such statute. This question, which is purely one of positive law, that is, of law applicable by judicial tribunals, is to be examined in a later portion of this treatise.

§ 505. On page 448 of the report, Chief Justice Taney says of the powers of the Government in this respect, "Whatever it acquires it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interest of the whole people of the Union in the exercise of the powers specifically granted." And on the same page, "it [the Territory] was acquired by the General Government as the representative and trustee of the people of the United States, and it must, therefore, be held in that character for their common and equal benefit, for it was the people of the several States, acting through their agent and representative, the Federal Government, who, in fact, acquired the Territory in question, and the Government holds it

any of them shall be deprived of its full and equal right in any territory of the United States, acquired or to be acquired.

Resolved, That the enactment of any law, which should directly, or by its effects, deprive the citizens of any of the States of this Union from immigrating, with their property, into any of the territories of the United States, will make such discrimination, and would, therefore, be a violation of the Constitution and the rights of the States from which such citizens emigrated, and in derogation of that perfect equality which belongs to them as members of this Union, and would tend directly to subvert the Union itself.

"Resolved, That it is a fundamental principle in our political creed, that a people in forming a Constitution have the unconditional right to form and adopt the government which they may think best calculated to secure their liberty, prosperity, and happiness; and that, in conformity thereto, no other condition is imposed by the Federal Constitution on a State in order to be admitted into this Union, except that its constitution shall be republican, and that the imposition of any other by Congress would not only be in violation of the Constitution, but in direct conflict with the principle upon which our political system rests."

1 Ante, p. 423, note.