other property;" or, perhaps, the doctrine held may be thus expressed that there is no distinction in law, or in the jurisprudence which may be applied by the national judiciary, between rights of property in respect to slaves, and, rights in respect to slaves as property.

§ 510. In any inquiry into the extent of terms used in the definition of chartered rights, (i. e., rights which have long been secured by written charters or bills of rights,) it is to be noticed that whether the judicial function is relatively superior, or co-ordinate, or subordinate, the practice of the legislating bodies, whose power in this respect is to be ascertained, and that of their actual predecessors, is the admitted ordinary exponent of the rule which is to determine the question. For, since in the very great majority of instances the action of the judiciary follows that of the legislature, if any conflict should arise as to the extent of the legislative function, a public customary law known by the continued, before-undisputed exercise of the legislative power, is all that can be appealed to.

Now the legislative exposition of the law, which is given in asserting legislative power to create, modify, or terminate the right of ownership in respect to natural persons has, in the history of the world, been constant, concurrent, and continued, from the "time whereof the memory of man runneth not to the contrary;" and the same power, as exercised solely with reference. to the slavery of negroes, Indians, and others not of Caucasian or European race, has been illustrated in the legislative history of the British empire and of the colonies, as presented in the former part of this work, in the claims of the revolting colonies against parliament,' and in the history of local law in all the States, both those wherein negro slavery has been abolished and those wherein it has continued. As will be more particularly shown hereafter in that connection, the entire power over slavery of persons not of European or white race, to establish, modify, or abolish it, has in most of the States been assumed by the constituted legislatures, without question from the judiciary; unless specific provisions limiting the legislature in this

1 Ante, p. 225, note 4.

respect have, as in some of the southern States, been introduced into the written Constitution. It appears never to have been judicially doubted, before this decision, that the entire power over the subject was in the constituted legislatures; in that of the State Governments for the States, and in Congress for the Territories, &c., unrestrained by common law or by bills of rights. And, until the Act of Congress of May 30, 1854, popularly known as the Act repealing the Missouri Compromise, the power had been exercised without question by Congress legislating for the Territories.

§ 511. The Chief Justice, in that part of the Opinion which has been referred to, notices the fact that "the laws and usages of nations and the writings of eminent jurists upon the relation of master and slave, and their mutual rights and duties and the powers which governments may exercise over it, have been

Entitled, An Act to organize the Territories of Nebraska and Kansas. In sec. 14, it is provided, "That the Constitution and all laws of the United States, which are not locally inapplicable, shall have the same force and effect within the said Territory of Nebraska as elsewhere within the United States; except the eighth section of the act preparatory to the admission of Missouri into the Union, approved March sixth, eighteen hundred and twenty, which being inconsistent with the principle of non-intervention by Congress with slavery in the States and Territories, as recognized by the legislation of eighteen hundred and fifty, commonly called the Compromise Measures, is hereby declared inoperative and void; it being the true intent and meaning of this act not to legislate slavery into any Territory or State, nor to exclude it therefrom, but to leave the people thereof perfectly free to form and regulate their domestic institutions in their own way, subject only to the Constitution of the United States, Provided, that nothing herein contained shall be construed to revive or put in force any law or regulation which may have existed prior to the act of 6th March, eighteen hundred and twenty, either protecting, establishing, prohibiting, or abolishing slavery." Sec. 32, applies the same words to Kansas. The acts of 1850, referred to here, are not particularized. Those popularly known as the Compromise Measures, are laws 31st Congress, ch. 47, entitled An Act proposing to the State of Texas the Establishment of her Northern and Western Boundaries, the Relinquishment by the said State of all Territory claimed by her exterior to said Boundaries, and of all her claims upon the United States, and to establish a Territorial Government for New Mexico. Sec. 2, of this act provides, "That, when admitted as a State, the said Territory, [of New Mexico.] or any portion of the same, shall be received into the Union, with or without slavery as their constitution may prescribe at the time of their admission." Also, ch. 50, An Act for the Admission of the State of California into the Union; ch. 51, An Act to establish a Territorial Government for Utah; in neither of which last is any thing said about slavery; ch. 60, The fugitive slave law, and ch. 63, An Act to suppress the Slave Trade in the District of Columbia.

The act of Mar. 6, 1820, was entitled, for the admission of Missouri and "to prohibit slavery in certain territories." Sec. 8, provided, "That in all that territory ceded by France to the United States, under the name of Louisiana, which lies north of thirtysix degrees and thirty minutes north latitude, not included within the limits of the State contemplated by this act, slavery and involuntary servitude, otherwise than in the punishment of crimes whereof the parties shall have been duly convicted, shall be and is hereby for ever prohibited."

dwelt upon in the argument" of this case, as determining whether, as was urged or supposed on one side, "there is a difference between property in a slave and in other property, and that different rules may be applied to it in expounding the Constitution of the United States."

If the term "law of nations," is here taken in the sense usually given to it in English and American jurisprudence,' the sense of public international law, a law of imperfect obligation, acting on states or nations as its subjects, the very definition of that law maintains the declaration of the Chief Justice, "that there is no law of nations standing between the people of the United States and their Government and interfering with their relation to each other." So, too, it must be admitted by all who recognize the Constitution as the supreme public law, that "the powers of the Government and the rights of the citizen under it are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted." It follows also, from the recognition of the constituting people of the United States as a sovereign, that "no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government or take from the citizens the rights they have reserved." These propositions seem to be unquestioned. As Mr. Justice Catron says, on page 519 of the report, "That Congress has no authority to pass laws and bind men's rights beyond the powers conferred by the Constitution is not open to controversy."

§ 512. But when the question before a judicial tribunal is, as it was stated by the Chief Justice, on page 444 of the report, "what power Congress can constitutionally exercise in a Territory over the rights of persons or rights of property of a citizen;" or, when, as said by Mr. Justice Catron, on page 519, "it is insisted that, by the Constitution, Congress has power to legis

late for and govern the Territories of the United States, and that by force of the power to govern, laws could be enacted, prohibiting slavery in any portion of the Louisiana Territory, and, of course, to abolish slavery in all parts of it, whilst it was, or is, governed as a Territory ;" and when the tribunal refers to those provisions of the Constitution which are in the nature of a bill of rights, or operate as private law in securing rights to private persons throughout the whole dominion of the people of the United States, as against the constituted Government, and designates the clause declaring that no person shall be deprived of property without due process of law, as securing a particular right in controversy; it is to be presumed, (and in direct proportion with the respect due to the court is the strength of the presumption,) that the judge will conceive of property according to some standard, criterion, or definition known to, and customarily accepted by, the possessors of sovereign power whose will he is to apply as law; that the standard of property will not be merely such as he himself conceives to be proper, expedient, morally or politically desirable, or conformable to the law of nature, simply as he conceives it to be.'

If there is no written or statute law, derived from this possessor of sovereign power, whose will and whose will alone the tribunal can enforce, which declares what is or is not property, the definition must be found in an unwritten or customary law which has been maintained by that possessor of sovereign power.

§ 513. There may be cases, coming before the national judiciary in its application of the quasi-international law, in which rights and obligations are to be determined according to the law of one of the several States or a local municipal law; though

1 Wynehamer agst. the People, (a case under the prohibitory liquor law,) 3 Kernan 385; Comstock, J., "The foundation of property is not in philosophic or scientific speculations, nor even in suggestions of benevolence and philanthropy. It is a simple and intelligible proposition, admitting in the nature of the case no qualification, that that is property which the law of the land recognizes as such. It is, in short, an institution of law, and not a result of speculation in science, in morals, or economy." And so in determining this question of property in negroes, it is equally immaterial whether negroes naturally are and ought, legally, to be held equal to whites, or whether they naturally are and ought, legally, to be held inferior creatures, and, as domestic animals, merely instruments in the possession of legal persons.

they are to be enforced or maintained by the national authority.' But in the case before the court, the question was not of a standard of property accordant with the juridical will of some one State, or with that of any number of the several States.* The question was, indeed, one of a local municipal law, the law prevailing in one of the Territories, but a law derived from the juridical will of the nation, the integral people of the United States.

There was no written or statutory enactment, proceeding from that integral people, which defined property, nor any distinguishing between legal persons and legal things, much less any declaring that natural persons held in servitude are or may be property in the juridical sentiment of that integral people. The standard or criterion of property was, therefore, only to be found in unwritten or customary law, identified with the lawgiving authority of the nation, the constituting people of the United States.3

§ 514. Now although it may be admitted that there is no separate, distinct rule of action, derived only from precedent and custom, which has territorial extent within the entire domain of the United States as one nation; that the law of the United States is found in the written Constitution and the acts of Congress passed in pursuance of it; that, in civil cases, the national judiciary applies common law as the rule obtaining within some one State or several jurisdiction of the United States, and has no common law to apply in the exercise of its criminal juris

1 Ante, §§ 368, 429.

According to Mr. Justice Campbell's view it is always the Constitution or law of some one State of the Union which in any place within the United States furnishes the legal criterion of what is or is not property, and "what 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." (p. 515 of rep.) As then, according to Judge Campbell's theory, there is no integral nation or people of the U. S., there can be no national law determining what is or is not property.

3 From the whole of the extract from the Opinion, already given, it appears that the Chief Justice also referred to certain clauses in the Constitution as a legislative declaration that slaves are to be considered property. The reasons for excepting to this have already been stated, p. 560. It would be too much like arguing in a circle to cite these clauses as declaring that slaves are to be regarded as property, and, on the other hand, refer to the doctrine that slaves are property, to interpret these clauses.