Part 21 (1/2)

One is, that though Congress can make a regulation prohibiting slavery in a Territory, they cannot make a regulation allowing it; another is, that it can neither be established nor prohibited by Congress, but that the people of a Territory, when organized by Congress, can establish or prohibit slavery; while the third is, that the Const.i.tution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and there hold them as property.

No particular clause of the Const.i.tution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Governments, its inconsistency with the Declaration of Independence and with natural right.

The second is drawn from considerations equally general, concerning the right of self-government, and the nature of the political inst.i.tutions which have been established by the people of the United States.

While the third is said to rest upon the equal right of all citizens to go with their property upon the public domain, and the inequality of a regulation which would admit the property of some and exclude the property of other citizens; and, inasmuch as slaves are chiefly held by citizens of those particular States where slavery is established, it is insisted that a regulation excluding slavery from a Territory operates, practically, to make an unjust discrimination between citizens of different States, in respect to their use and enjoyment of the territory of the United States.

With the weight of either of these considerations, when presented to Congress to influence its action, this court has no concern. One or the other may be justly ent.i.tled to guide or control the legislative judgment upon what is a needful regulation. The question here is, whether they are sufficient to authorize this court to insert into this clause of the Const.i.tution an exception of the exclusion or allowance of slavery, not found therein, nor in any other part of that instrument. To engraft on any instrument a substantive exception not found in it, must be admitted to be a matter attended with great difficulty. And the difficulty increases with the importance of the instrument, and the magnitude and complexity of the interests involved in its construction. To allow this to be done with the Const.i.tution, upon reasons purely political, renders its judicial interpretation impossible--because judicial tribunals, as such, cannot decide upon political considerations. Political reasons have not the requisite certainty to afford rules of juridical interpretation. They are different in different men. They are different in the same men at different times. And when a strict interpretation of the Const.i.tution, according to the fixed rules which govern the interpretation of laws, is abandoned, and the theoretical opinions of individuals are allowed to control its meaning, we have no longer a Const.i.tution; we are under the government of individual men, who for the time being have power to declare what the Const.i.tution is, according to their own views of what it ought to mean. When such a method of interpretation of the Const.i.tution obtains, in place of a republican Government, with limited and defined powers, we have a Government which is merely an exponent of the will of Congress; or what, in my opinion, would not be preferable, an exponent of the individual political opinions of the members of this court.

If it can be shown, by anything in the Const.i.tution itself, that when it confers on Congress the power to make _all_ needful rules and regulations respecting the territory belonging to the United States, the exclusion or the allowance of slavery was excepted; or if anything in the history of this provision tends to show that such an exception was intended by those who framed and adopted the Const.i.tution to be introduced into it, I hold it to be my duty carefully to consider, and to allow just weight to such considerations in interpreting the positive text of the Const.i.tution. But where the Const.i.tution has said _all_ needful rules and regulations, I must find something more than theoretical reasoning to induce me to say it did not mean all.

There have been eminent instances in this court closely a.n.a.logous to this one, in which such an attempt to introduce an exception, not found in the Const.i.tution itself, has failed of success.

By the eighth section of the first article, Congress has the power of exclusive legislation in all cases whatsoever within this District.

In the case of Loughborough _v._ Blake, (5 Whea., 324,) the question arose, whether Congress has power to impose direct taxes on persons and property in this District. It was insisted, that though the grant of power was in its terms broad enough to include direct taxation, it must be limited by the principle, that taxation and representation are inseparable. It would not be easy to fix on any political truth, better established or more fully admitted in our country, than that taxation and representation must exist together. We went into the war of the Revolution to a.s.sert it, and it is incorporated as fundamental into all American Governments. But however true and important this maxim may be, it is not necessarily of universal application. It was for the people of the United States, who ordained the Const.i.tution, to decide whether it should or should not be permitted to operate within this District. Their decision was embodied in the words of the Const.i.tution; and as that contained no such exception as would permit the maxim to operate in this District, this court, interpreting that language, held that the exception did not exist.

Again, the Const.i.tution confers on Congress power to regulate commerce with foreign nations. Under this, Congress pa.s.sed an act on the 22d of December, 1807, unlimited in duration, laying an embargo on all s.h.i.+ps and vessels in the ports or within the limits and jurisdiction of the United States. No law of the United States ever pressed so severely upon particular States. Though the const.i.tutionality of the law was contested with an earnestness and zeal proportioned to the ruinous effects which were felt from it, and though, as Mr. Chief Justice Marshall has said, (9 Wheat., 192,) ”a want of acuteness in discovering objections to a measure to which they felt the most deep-rooted hostility will not be imputed to those who were arrayed in opposition to this,” I am not aware that the fact that it prohibited the use of a particular species of property, belonging almost exclusively to citizens of a few States, and this indefinitely, was ever supposed to show that it was unconst.i.tutional. Something much more stringent, as a ground of legal judgment, was relied on--that the power to regulate commerce did not include the power to annihilate commerce.

But the decision was, that under the power to regulate commerce, the power of Congress over the subject was restricted only by those exceptions and limitations contained in the Const.i.tution; and as neither the clause in question, which was a general grant of power to regulate commerce, nor any other clause of the Const.i.tution, imposed any restrictions as to the duration of an embargo, an unlimited prohibition of the use of the s.h.i.+pping of the country was within the power of Congress. On this subject, Mr. Justice Daniel, speaking for the court in the case of United States _v._ Marigold, (9 How., 560,) says: ”Congress are, by the Const.i.tution, vested with the power to regulate commerce with foreign nations; and however, at periods of high excitement, an application of the terms 'to regulate commerce,'

such as would embrace absolute prohibition, may have been questioned, yet, since the pa.s.sage of the embargo and non-intercourse laws, and the repeated judicial sanctions these statutes have received, it can scarcely at this day be open to doubt, that every subject falling legitimately within the sphere of commercial regulation may be partially or wholly excluded, when either measure shall be demanded by the safety or the important interests of the entire nation. The power once conceded, it may operate on any and every subject of commerce to which the legislative discretion may apply it.”

If power to regulate commerce extends to an indefinite prohibition of the use of all vessels belonging to citizens of the several States, and may operate, without exception, upon every subject of commerce to which the legislative discretion may apply it, upon what grounds can I say that power to make all needful rules and regulations respecting the territory of the United States is subject to an exception of the allowance or prohibition of slavery therein?

While the regulation is one ”respecting the territory,” while it is, in the judgment of Congress, ”a needful regulation,” and is thus completely within the words of the grant, while no other clause of the Const.i.tution can be shown, which requires the insertion of an exception respecting slavery, and while the practical construction for a period of upwards of fifty years forbids such an exception, it would, in my opinion, violate every sound rule of interpretation to force that exception into the Const.i.tution upon the strength of abstract political reasoning, which we are bound to believe the people of the United States thought insufficient to induce them to limit the power of Congress, because what they have said contains no such limitation.

Before I proceed further to notice some other grounds of supposed objection to this power of Congress, I desire to say, that if it were not for my anxiety to insist upon what I deem a correct exposition of the Const.i.tution, if I looked only to the purposes of the argument, the source of the power of Congress a.s.serted in the opinion of the majority of the court would answer those purposes equally well. For they admit that Congress has power to organize and govern the Territories until they arrive at a suitable condition for admission to the Union; they admit, also, that the kind of Government which shall thus exist should be regulated by the condition and wants of each Territory, and that it is necessarily committed to the discretion of Congress to enact such laws for that purpose as that discretion may dictate; and no limit to that discretion has been shown, or even suggested, save those positive prohibitions to legislate, which are found in the Const.i.tution.

I confess myself unable to perceive any difference whatever between my own opinion of the general extent of the power of Congress and the opinion of the majority of the court, save that I consider it derivable from the express language of the Const.i.tution, while they hold it to be silently implied from the power to acquire territory.

Looking at the power of Congress over the Territories as of the extent just described, what positive prohibition exists in the Const.i.tution, which restrained Congress from enacting a law in 1820 to prohibit slavery north of thirty-six degrees thirty minutes north lat.i.tude?

The only one suggested is that clause in the fifth article of the amendments of the Const.i.tution which declares that no person shall be deprived of his life, liberty, or property, without due process of law. I will now proceed to examine the question, whether this clause is ent.i.tled to the effect thus attributed to it. It is necessary, first, to have a clear view of the nature and incidents of that particular species of property which is now in question.

Slavery, being contrary to natural right, is created only by munic.i.p.al law. This is not only plain in itself, and agreed by all writers on the subject, but is inferable from the Const.i.tution, and has been explicitly declared by this court. The Const.i.tution refers to slaves as ”persons held to service in one State, under the laws thereof.”

Nothing can more clearly describe a _status_ created by munic.i.p.al law.

In Prigg _v._ Pennsylvania, (10 Pet., 611,) this court said: ”The state of slavery is deemed to be a mere munic.i.p.al regulation, founded on and limited to the range of territorial laws.” In Rankin _v._ Lydia, (2 Marsh., 12, 470,) the Supreme Court of Appeals of Kentucky said: ”Slavery is sanctioned by the laws of this State, and the right to hold them under our munic.i.p.al regulations is unquestionable. But we view this as a right existing by positive law of a munic.i.p.al character, without foundation in the law of nature or the unwritten common law.” I am not acquainted with any case or writer questioning the correctness of this doctrine. (See also 1 Burge, Col. and For.

Laws, 738-741, where the authorities are collected.)

The _status_ of slavery is not necessarily always attended with the same powers on the part of the master. The master is subject to the supreme power of the State, whose will controls his action towards his slave, and this control must be defined and regulated by the munic.i.p.al law. In one State, as at one period of the Roman law, it may put the life of the slave into the hand of the master; others, as those of the United States, which tolerate slavery, may treat the slave as a person, when the master takes his life; while in others, the law may recognise a right of the slave to be protected from cruel treatment.

In other words, the _status_ of slavery embraces every condition, from that in which the slave is known to the law simply as a chattel, with no civil rights, to that in which he is recognised as a person for all purposes, save the compulsory power of directing and receiving the fruits of his labor. Which of these conditions shall attend the _status_ of slavery, must depend on the munic.i.p.al law which creates and upholds it.

And not only must the _status_ of slavery be created and measured by munic.i.p.al law, but the rights, powers, and obligations, which grow out of that _status_, must be defined, protected, and enforced, by such laws. The liability of the master for the torts and crimes of his slave, and of third persons for a.s.saulting or injuring or harboring or kidnapping him, the forms and modes of emanc.i.p.ation and sale, their subjection to the debts of the master, succession by death of the master, suits for freedom, the capacity of the slave to be party to a suit, or to be a witness, with such police regulations as have existed in all civilized States where slavery has been tolerated, are among the subjects upon which munic.i.p.al legislation becomes necessary when slavery is introduced.

Is it conceivable that the Const.i.tution has conferred the right on every citizen to become a resident on the territory of the United States with his slaves, and there to hold them as such, but has neither made nor provided for any munic.i.p.al regulations which are essential to the existence of slavery?

Is it not more rational to conclude that they who framed and adopted the Const.i.tution were aware that persons held to service under the laws of a State are property only to the extent and under the conditions fixed by those laws; that they must cease to be available as property, when their owners voluntarily place them permanently within another jurisdiction, where no munic.i.p.al laws on the subject of slavery exist; and that, being aware of these principles, and having said nothing to interfere with or displace them, or to compel Congress to legislate in any particular manner on the subject, and having empowered Congress to make all needful rules and regulations respecting the territory of the United States, it was their intention to leave to the discretion of Congress what regulations, if any, should be made concerning slavery therein? Moreover, if the right exists, what are its limits, and what are its conditions? If citizens of the United States have the right to take their slaves to a Territory, and hold them there as slaves, without regard to the laws of the Territory, I suppose this right is not to be restricted to the citizens of slaveholding States. A citizen of a State which does not tolerate slavery can hardly be denied the power of doing the same thing. And what law of slavery does either take with 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 munic.i.p.al 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 munic.i.p.al laws to which the mother was subject; and when any slave is sold or pa.s.ses by succession on the death of the owner, there must pa.s.s with him, by a species of subrogation, and as a kind of unknown _jus in re_, the foreign munic.i.p.al laws which const.i.tuted, 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 a.s.sumption 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 a.s.sumption 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,”