SLAVERY IN THE TERRITORIES.

541

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of the treaty of 1803, ceding Louisiana to the United States, stands protected by the Constitution, and cannot be repealed by Congress.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

tories, and, in their dissenting opinions both equally opposed the doctrine that the right of the immigrating slave-holder is protected under the constitutional guarantee of private property and the doctrine that it is maintained in the Territory by the law of the State in which he formerly resided. In their examination the two questions are hardly distinguished as separate inquiries.

§ 500. Mr. Justice McLean's opinion seems to be that Congress has power to abolish or prohibit slavery in the Territories, but has no power to establish or introduce slavery. In denying the latter power, Judge McLean relies on the fact that it is not granted by the Constitution, and is "contrary to its spirit," though appearing to admit that where slavery has before existed or been lawful in a Territory it may thereafter be maintained or recognized by the national Government; and he derives the power of prohibiting it only from his own view of what "sound national policy" may justify, as a "needful rule and regulation under the "territory and other property" clause. Judge McLean's language, on page 542 of the report is:

"Did Chief Justice Marshall, in saying that Congress governed a Territory, by exercising the combined powers of the Federal and State Governments, refer to unlimited discretion? A Government which can make white men slaves? Surely, such a remark in the argument must have been inadvertently uttered. On the contrary, there is no power in the Constitution by which Congress can make either white or black men slaves. In organizing the Government of a Territory, Congress is limited to means appropriate to the attainment of the constitutional object. No powers can be exercised which are prohibited by the Constitution, or which are contrary to its spirit; so that, whether the object may be the protection of the persons and property of purchasers of the public lands, or of communities who have been annexed to the Union by conquest or purchase, they are initiatory to the establishment of State Governments, and no more power can be claimed or exercised than is necessary to the attainment of the end. This is the limitation of all the Federal powers.

MR. JUSTICE M'LEAN'S OPINION.

543

"But Congress has no power to regulate the internal concerns of a State, as of a Territory; consequently, in providing for the Government of a Territory, to some extent, the combined powers of the Federal and State Governments are necessarily exercised.

"If Congress should deem slaves or free colored persons injurious to the population of a free Territory, as conducing to lessen the value of the public lands, or on any other ground connected with the public interest, they have the power to prohibit them from becoming settlers in it. This can be sustained on the ground of a sound national policy, which is so clearly shown in our history by practical results, that it would seem no considerate individual can question it. And, as regards any unfairness of such a policy to our Southern brethren, as urged in the argument, it is only necessary to say that, with one-fourth of the Federal population of the Union, they have in the slave States a larger extent of fertile territory than is included in the free States; and it is submitted, if masters of slaves be restricted from bringing them into free territory, that the restriction on the free citizens of non-slaveholding States, by bringing slaves into free territory, is four times greater than that complained of by the South. But, not only so; some three or four hundred thousand holders of slaves, by bringing them into free territory, impose a restriction on twenty millions of the free States. The repugnancy to slavery would probably prevent fifty or a hundred freemen from settling in a slave Territory, where one slaveholder would be prevented from settling in a free Territory.

"This remark is made in answer to the argument urged, that a prohibition of slavery in the free Territories is inconsistent with the continuance of the Union. Where a territorial Government is established in a slave Territory, it has uniformly remained in that condition until the people form a State Constitution; the same course where the Territory is free, both parties acting in good faith, would be attended with satisfactory results."1

'Here Judge McLean seems to argue only for a power to prevent the introduction of slaves into territory previously vacant, not for power to change the condition of

In concluding his examination of this point of the case, Judge McLean observes, on page 547, "If Congress may establish a Territorial Government in the exercise of its discretion, it is a clear principle that a court cannot control that discretion. This being the case, I do not see on what ground the act is held to be void. It did not purport to forfeit property, or take it for public purposes. It only prohibited slavery; in doing which it followed the ordinance of 1787." Judge McLean then proceeds to the international question of "the effect of taking slaves into a State or Territory, and so holding them, where slavery is prohibited." Although the argument here assumes that there is no local (internal) law in the Territory maintaining slavery as the condition of domiciled persons, some passages in this part of his opinion are a reply to those doctrines of other members of the Court which would maintain its existence, as between masters and slaves emigrating thither, irrespectively of the legis lative (juridical) action of the national Government, and thus make it an effect of the local (internal) law of the Territory.1 Judge McLean first refers to the principle that slavery exists by local law, or municipal law, in the sense of jus proprium, as recognized by the Supreme Court, in Prigg's case, 16 Peters, 611, "The state of slavery is deemed to be a mere municipal regu

persons who, before, had been lawfully held as slaves, and does not consider the act as one abolishing slavery. Judge Catron, on the other hand, (p. 525,) says, "The Missouri Compromise line was very aggressive; it declared that slavery was abolished for ever throughout a country reaching from the Mississippi river to the Pacific ocean," &c., and assuming this extent for the country ceded by France, designates the portion in which slavery was prohibited as four-fifths of the whole. The term " aggressive would be more appropriate on some other theory than that which Judge Catron principally relied on in denying the power of Congress, i. e. the treaty securing the inhabitants in their property, &c. For at the date of cession, and even in 1820, the date of the Act of Congress, there probably was not a single negro slave in the whole region o which it applied.

1

The relations of persons immigrating into a country or forum are determined by law, which is private international law in the first instance, or while such persons are distinguished as still domiciled in their former residence. If the same relations continue, after they have acquired a new domicil, they must be called effects of the local or internal law of the forum. Comp. ante, §§ 121, 195, 240. The question, whether the correlative rights and obligations of master and slave immigrating into the Territories may be judicially recognized there, if not prohibited by the legislative enactment of the possessors of sovereign power therein, is to be considered hereafter, in tracing the local municipal laws of the Territories. This question and that of the legislative power of Congress in respect to slavery, seem not to have been clearly distinguished by some of the Justices in their opinions.

MR. JUSTICE M'LEAN'S OPINION.

545

lation, founded upon and limited to the range of the territorial laws." He then observes, on page 548 of the report, "By virtue of what law is it that a master may take his slave into free territory, and exact from him the duties of a slave? The law of the Territory does not sanction it. No authority can be claimed under the Constitution of the United States, or any law of Congress. Will it be said that the slave is taken as property, the same as other property which the master may own? Το this I answer, that colored persons are made property by the law of the State, and no such power is given to Congress. Does the master carry with him the law of the State from which he removes into the Territory? and does that enable him to coerce his slave in the Territory? Let us test this theory. If this may be done by a master from one slave State, it may be done by a master from every other slave State. This right is supposed to be connected with the person of the master, by virtue of the local law. Is it transferable? May it be negotiated, as a promissory note or bill of exchange? If it be assigned to a man from a free State, may he coerce the slave by virtue of it? What shall this thing be denominated? Is it personal or real property? Or is it an indefinable fragment of sovereignty, which every person carries with him from his late domicil? One thing is certain, that its origin has been very recent, and it is unknown to the laws of any civilized country."

On the same page, Judge McLean also says, "It is said the Territories are common property of the States, and that a man has a right to go there with his property. This is not controverted. But the court say a slave is not property beyond the operation of the local law which makes him such. Never was a truth more authoritatively and justly uttered by man." Judge McLean probably here refers to what was said by the court in Prigg's case, above cited.1

In this connection, Judge McLean remarks, on the same page, as to the authority of that part of the Opinion of the Court, which maintains that slaves are recognized as property by the Constitution: "In this case, a majority of the court have said that a slave may be taken by his master into a Territory of the United States, the same as a horse, or any other kind of property. It is true, this was said by the court, as also many other things which are of no authority. Nothing that has been said by them, which has not a direct bearing on the jurisdiction of the court, against which they de