pear that slavery would have been prohibited by these several acts of fundamental law; supposing that the power of Congress had not been limited in this respect.

1838-9.—An act to regulate blacks and mulattoes, Sess. L. p. 65. Sec. 1. Certificate of freedom under seal required of blacks coming to reside; bond and security required. 2. Proceeding against negroes failing in this respect, and provision for hiring out such persons. 3, 4. Penalties. 5. "That the right of any person or persons to pass through this Territory with his, her, or their negroes and mulattoes, servant or servants, when emigrating or traveling to any other State or Territory, or country, or on a visit, is hereby declared and secured." 6. That in case any person or persons, his or their agent or agents, claiming any black or mulatto person that now is or hereafter may be in this Territory, shall apply to any judge of the district court, or justice of the peace, and shall make satisfactory proof that such black or mulatto person or persons is or are the property of him or her who applies, or for whom application is made, the said judge or justice is hereby empowered and required by his precept to direct the sheriff or constable to arrest such black or mulatto person or persons, and deliver the same to the claimant or claimants, his or their agent or agents, for which service the sheriff or constable shall receive such compensation as they are entitled to receive in other cases for similar services. No provisions of this character appear in the Code of 1851, and they seem to be repealed by the general repealing clause. Ib. p. 8. But see law of 1851, c. 72,. An act defining crimes and punishments. Sess. L. 147, sec. 25. Kidnapping. "If any person or persons shall forcibly steal, take, or arrest any man, woman, or child in this Territory, and carry him or her into another country, State, or Territory, or who shall forcibly take or arrest any person or persons whatsoever, with a design to take him or her out of this Territory, without having legally established his, her, or their claim according to the laws of this Territory or of the United States, shall, upon conviction thereof, be punished by a fine not exceeding one thousand dollars, and by imprisonment not exceeding ten years." Sec. 2588 of the Code of 1851, defining

and punishing kidnapping, makes no reference to claim of persons owing service or labor.

1839-40. c. 25. An act regulating marriages. Sec. 13. "All marriages of white persons with negroes and mulattoes are declared to be illegal and void." No such declaration appears in the provisions of the Code of 1851, on marriage. 1846, May 18. Constitution of the State of Iowa declared by a Convention. Art. II. sec. 1. "All men are, by nature, free and independent, and have certain inalienable rights, among which are," &c. Art. III. sec. 1. Limits the right of suffrage to whites."

1851, c. 72. An act to prohibit the immigration of free negroes into this State. Sec. 1. Negroes coming are to be notified to leave, and, on non-compliance, are to be fined, and committed until they pay fine and costs, or consent to leave the State. 3. Free negroes now living in the State, “having complied with the laws now in force," are permitted to remain. 4. "On the trial of any free negro under this act, the justice or judge shall determine from, and irrespective of his person, whether the person on trial comes under the denomination of free negro or mulatto." Feb. 5. By the Code of this date, § 2388, "Every human being of sufficient capacity to understand the obligation of an oath is a competent witness in all cases both civil and criminal, except as herein otherwise declared. But an Indian, a negro, a mulatto, or black person shall not be allowed to give testimony in any cause wherein a white person is a party."

570. LEGISLATION OF THE STATE OF MINNESOTA.

The territory included within this State had been included within the Territory of Iowa until the admission of that State,

1840, c. 33. An act to authorize the arrest and detention of fugitives of justice from, &c., refers to the governor, as if already sufficiently qualified to deliver up, by the laws of the United States. The governor is authorized by the Code of 1851, § 3283.

2 Act of Congress, March 3, 1845, for the admission of the States of Iowa and Florida into the Union, V. Stat. U. Š. 742, 10 B. & D. 695, recites that territorial conventions in each had formed Constitutions for State governments which were republican, &c.

On the construction of this provision, see Motts v. Usher, 2 Iowa, 82. An attempt has been made to repeal this provision, but I am unable to say whether it became a law.

VOL. II-12

in 1846. The laws of Wisconsin Territory were continued by sec. 12 of the act establishing the territorial government in

1849.

1851. Revised Statutes. No distinction of color is made in declaring capacity for the marriage contract, nor in declaring the competency of witnesses. There is no provision respecting persons claimed as fugitives from labor. Ch. 100, sec. 42, amended in 1852. Amendments to R. S., p. 23, declares the punishment of kidnapping, with intent to sell as a slave or hold to service, &c., any negro, &c.' The same statutes appear included in the Public Statutes, &c., ed. 1859.

1858.—A State Constitution adopted.* Art. I., a Bill of Rights. Sec. 2. "No member of this State shall be disfranchised," &c. "There shall be neither slavery nor involuntary servitude in the State, otherwise than in the punishment of crime, whereof the party shall have been duly convicted." 16. That the enumeration of rights shall not impair others retained by and inherent in the people. There is no attribution of rights to all men as natural and inherent. Art. VII. sec. 1, 2, limit the elective franchise to "whites, and persons of Indian or mixed white and Indian blood, who have adopted the habits of civilization."

571.

LEGISLATION OF NEBRASKA TERRITORY.

The laws of the District and Territory of Louisiana and of the Territory of Missouri may have had territorial as well as personal extent in the territory now divided between the Territory of Nebraska and the State of Kansas, if included in the Louisiana purchase. The force of that law to maintain slavery, as the condition of a domiciled inhabitant, would how

1 Ante, p. 177.

March 3, 1849. An act to establish the territorial government of Minnesota. IX. Stat. U. S. 403. Sec. 6 defines the legislative body, and reserves to Congress power to disallow the territorial acts.

3

Ch. 111. Of demanding fugitives from justice. Sec. 2 authorizes the governor to surrender such persons on demand. See the same in Ch. 100 of Public Statutes, ed. 1859.

4 May 11, 1858. An act for the admission of the State of Minnesota into the Union. XI. Stat. U. S. 285. Sec. 1 recites an act of Congress of Feb. 26, 1857, to authorize the formation of a State government; the adoption of the State constitution. Sec. 3 extends the laws of the United States over such State.

ever have been destroyed by the prohibition of slavery north of 36° 30', in the eighth section of the act of 1820, if Congress had had the power to prohibit it.

By the 14th section of the act organizing the Territories Nebraska and Kansas,' the 8th section of the act of March 6th, 1820, is "declared inoperative and void." But whether slavery, or any condition of involuntary servitude, could thereupon have been judicially recognized as lawful, without some legislative sanction from the local government, may be questioned, in view of the explanatory words immediately following those above quoted: "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." From the proviso immediately following, it appears that the old law of Louisiana could not have been relied on to maintain slavery as a status supported by the local law, or law having territorial extent therein. By this it is "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 the sixth of March, 1820, either protecting, establishing, prohibiting, or abolishing slavery."

1

By act of Congress, 1854, An act to organize the Territories of Nebraska and Kansas. X. St. U. S. 277. By sec. 1, the line of 40°, from the western boundary of Missouri to the Rocky Mountains, is made the dividing line between these two Territories. By sec. 19, the line of 37° is the most southern line of the Kansas boundary-the whole being thus, by 6', north of the line of the Missouri Compromise.

It is declared in the sixth section "that the legislative power of the Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act"-with certain exceptions not material in connection with law of personal condition. In view of the opinions of the six justices of the Supreme Court in Dred Scott's case (ante, Vol. I. p. 558), the question arises whether (supposing Congress to have intended in the 14th sec. to give the local Legislature the power to maintain or exclude slavery) such power can be possessed by the local Legislature,-whether the powers of such Legislature are such only as may be derived from Congress, and consequently not greater than those of Congress, or whether from the inhabitants of the Territory they derive an inherent local sovereignty, like that held by the people of a State. Among the printed arguments in favor of the possession of this power by the territorial governments may be noticed especially, The dividing line between Federal and Local Authority; Popular Sovereignty and the Territories. By Stephen A. Douglas. Harper's Magazine for Sept., 1859. The writer's concluding principle

Under the Dred Scott decision, declaring the prohibition of 1820 null and void, it may be urged that the law of Louisiana Territory, as having always had territorial extent in Nebraska and Kansas, sustains slavery therein, until abrogated by competent legislative authority.

But if the act of 1820 is to be sustained as a legitimate exercise of power, or if the law of Louisiana is held never to have had such force,' then, under the legislation of 1854, above recitet, these Territories may be taken to have had no law at that date, having territorial extent therein, to determine the status of persons, and to have been in that respect in the condition of this whole country at the time of the first settlement; and the question arises whether, under this view, slavery is a lawful status in these Territories, independently of some legislation of competent authority.

The question whether, in this view, the condition of slavery, or any involuntary servitude, and the correlative rights of the master, in the case of owner and slave coming from some slaveholding jurisdiction, should be judicially recognized and maintained between them on becoming domiciled inhabitants, is a question of the local municipal or internal law of the Territory, because it is law applying to residents. But it is one which is to be decided as a question of international private law, or of quasi-international private law, accordingly as there may or may not be a law resting on national authority to support that condition and those rights in such case.

It is evident that the doctrine that slaves are property recognized by the Constitution of the United States acting as a bill of rights, the doctrine maintained in Dred Scott's case by Judges Taney, Wayne, Grier, and Daniel, or the doctrine.

is, "that under our political system, every distinct political community, loyal to the Constitution and the Union, is entitled to all the rights, privileges, and immunities of self-government in respect to their local concerns and internal polity, subject only to the Constitution of the United States."

In the Preface, signed Samuel A. Lowe, Superintendent, p. i., to Kansas Statutes of 1855, published as from the Shawnee Mission School, Oct., 1855, pp. 1088, it is argued, with reference to its bearing on the lawfulness of slavery, in that Territory, that as there were no new settlements therein of a permanent nature until very recently, there is no occasion to consider the French law of Louisiana.