courage the reclamation of slaves escaping beyond the limits of the slave territories of the United States.' Provides for pay

ment by the State, in the first instance, of one third of the value, as a reward to any person recapturing such slaves.

576. LEGISLATION OF THE STATE OF CALIFORNIA.

In the territory of the present State of California Mexican citizens were living under the civil law of Mexico at the time of its occupation by Americans, under the authority of the government of the United States, in 1846. Yet it does not appear that that law has, at any time thereafter, been recognized as having had that territorial extent which would have required its continuance as the law of the land until abrogated by the new sovereign.' The Mexican law operated as a personal law in determining the individual rights of Mexi cans,' and was necessarily referred to as evidence of fact in the determination of the existing land titles.*

It may be doubted, therefore, whether the Mexican law prohibiting slavery' could, by continuing as the local law, have

1

Bartley's Digest, published 1850, does not contain any law authorizing the governor to deliver fugitives from justice. Oldham and White's Dig. of 1859, gives, in arts. 878-890, a law as of Aug. 26, 1856 (not found in annual laws), which contemplates the delivery of fugitives from justice without granting any special power to the governor.

2 Ante, Vol. I, p. 115.

3

Treaty of Guadaloupe Hidalgo, Feb. 2, 1848. IX. Stat. U. S. 108. Art. 8. Provides that Mexicans then established in the Territories previously belonging to Mexico shall have the choice of remaining or removing with their property, &c. "Those who shall prefer to remain in said Territories may either retain the title and rights of Mexican citizens, or acquire those of citizens of the United States." They were to make election within one year. Art. 9. "Mexicans who, in the Territories aforesaid, shall not preserve the character of citizens of the Mexican Republic, conformably to what is stipulated in the preceding article, shall be incorporated into the Union of the United States, and be admitted at the proper time (to be judged of by the Congress of the United States) to the enjoyment of all the rights of citizens of the United States, according to the principles of the Constitution; and in the meantime shall be maintained and protected in the free enjoyment of their liberty and property, and secured in the free exercise of their religion without restriction." There is no distinction of persons with respect to color or race.

* See pp. 576, 577, 600, in Vol. I. California Rep. Appendix.

In the matter of Perkins (1852), 2 Cal. 424, where the question was of the validity of the State law of 1852, it was held, that slaves brought from Mississippi to California were lawfully held as such. The opinions delivered by Judges Murray and Anderson are remarkable for containing the same doctrines, or doctrines very similar to those which, as held by the Supreme Court of the United States,

presented such an universal attribution of liberty as should have prevented the judicial recognition of the relation of master have made Dred Scott's case so important. Judge Murray says, ib. 439:-"Again it is said, that slavery is a municipal regulation, founded on and limited to the range of the territorial laws; that slavery was prohibited by a decree of the Mexican Congress, and did not exist at the time of the acquisition of California; that the laws and municipal regulations of Mexico remained in force until changed by the new sovereignty; and, consequently, slavery was expressly prohibited by virtue of the laws of Mexico up to the time of the adoption of our State Constitution. I shall not attempt to dispute the correctness of some of these propositions, though I cannot admit the conclusion drawn from thence by the learned counsel. Slavery may be admitted by custom, and is said to have been introduced in all modern States, except some of the colonies of Spain, without any act of legislative recognition; but there must be some positive municipal law to entitle the master to assert a right to, and exercise acts of ownership over, the person of the slave; so that the master may possess a property in his slave by custom, and still be unable to control him for want of some positive law regulating this species of property. [Compare ante, § 528.] Although slavery may, as between separate States, be considered the creature of municipal regulations, still the Constitution of the United States recognizes a property in this class of persons, and the institution of slavery is a social and political one. While I am willing to admit for present purposes (although I have heretofore denied the application of these laws to property and contracts made by Americans after the acquisition of this country) that the laws of Mexico remained in force until changed by the act of our Legislature, I do so because I regard slavery as a political institution; and the rule is well settled, that the political laws of the ceded or conquered country give way to the acquiring country."

Judge Anderson's argument is based mainly on the doctrine that slaves are property, which, as recognized by the Constitution of the United States, must be taken to be supported by a law of national extent-the same doctrine afterwards asserted by Chief Justice Taney. Judge Anderson repeatedly asserts, as the doctrine of older cases, that wherever the relation between master and slave has been internationally recognized, the slave is recognized as property. Ib. 447. "The slave is property,' and so to be judicially regarded." Îb. 453. "Slaves are recognized by the Constitution of the United States as property, and protected." In the same place he refers to their being counted in the federal basis of representation and taxation as making slavery a political institution: which also seems to be the foundation of Judge Murray's opinion. And Ib. 454. “So the right of every citizen of the United States to emigrate to this Territory, and bring his property with him, was perfect, equal, and sacred. The property here brought in question is that of slaves. The Constitution of the United States was in full force here. Slaves were as much recognized by that as property as any other objects whatever. There were no laws restraining the emigration of slaves. California had ceased to be Mexican territory, and was under the political institutions of the United States, whose government alone had the power to give executory effect to any law which should act upon American emigrants. It did disregard the Mexican law of emancipation, as it had a perfect right to do; and was so constitutionally bound, because to have given it effect would have been to nullify a political immunity secured to the people of the slave States by the original basis of compromise to which all had agreed. The Mexican law was repelled by the political nature of the institution of slavery, and therefore became obsolete. California, even as a sovereign State, cannot by law declare the slaves who were here at the time of its adoption into the Union free, except as a forfeiture, under the penal sanction of an act which might require their removal within a reasonable time after capture. A fortiori, that which a sovereign State could not do, a territorial government could not, if it had so attempted. It is not sovereign.

"When the United States acquired the territory of California, it became the common property of all the people of all the States, and the right of emigration

and slave, when coming from some State in which they had been in that relation.. It may be argued, on the principles hereinbefore set forth, that slavery, by the so-called comity of nations, would have become a legal condition in California, even when the master and slave should have acquired a domicil.' The doctrine set forth in Judge Taney's opinion, in Dred Scott's case, might however require the conclusion that slavery would have become lawful in any portion of Mexican territory which might have been acquired by the United States. The practical application of such doctrine had before that case been shown in the decision of the Supreme Court of California, in 1852; and in that view the extracts given below from the opinions will appear important.

1849. Constitution of the State. Art. I. A bill of rights. Sec. 1. "All men are by nature free and independent, and have certain inalienable rights," &c. 18. "Neither slavery nor involuntary servitude, unless for the punishment of crimes, shall ever be tolerated in this State." Art. II. sec. 1, limits the suffrage to whites.

1850, c. 95. An act declaring "the common law of England, so far as it is not repugnant to or inconsistent with the Constitution of the United States, or the Constitution or laws of the State of California, shall be the rule of decision in the courts of this State." c. 99. An act concerning crimes and punishments. Sec. 53. "Kidnapping is the forcible abduction or stealing away of a man, woman, or child, from his or her own country, and sending or taking him or her into another." 54. "Every person who shall forcibly steal, take, or arrest any man, woman, or child, whether white, black, or colored, or any Indian in this State, and carry him or her into another county, State, or Territory, or who shall forcibly take or arrest any person or persons whatsoever, with a design to

with every species of property belonging to the citizens was inherent with its use and possession. By the 5th art. of the amendments to the Constitution [of the U. S. it is provided that no person shall,'" &c. The judge argues that this clause of the Constitution of the United States maintains the right of the master in this case, even against the power of the State.

2

See ante, p. 184, the argument in respect to Kansas and Nebraska.

1850, Sept. 9. An act for the admission of the State of California into the Union, IX. St. U. S. 452, one of the "Compromise measures.' Ante, Vol. I. p. 563.

take him or her out of this State, without having established a claim according to the laws of the United States, shall, upon conviction, be deemed guilty of kidnapping, and be punished by imprisonment in the State prison for any term not less than one nor more than ten years for each person 'kidnapped or attempted to be kidnapped." 55. "Every person who shall hire, persuade, entice, decoy, or reduce by false promises, misrepresentations, and the like, any negro, mulatto, or colored person, to go out of this State, or to be taken or removed therefrom, for the purpose and with the intent to sell such negro, mulatto, or,colored person into slavery or involuntary servitude, or otherwise to employ him or her for his or for her own use, or to the use of another, without the free will and consent of such negro, mulatto, or colored person, shall be deemed to have committed the crime of kidnapping, and, upon conviction thereof, shall be punished as in the next preceding section specified." Compiled Laws, c. 125. c. 133. An act for the government and protection of Indians. Comp. L. c. 150. Contains provisions respecting Indian children held as apprentices, and contracts of service by adult Indians. 140. Regulating marriages. Comp. L. c. 35. Sec. 3. "All marriages of white persons with negroes or mulattoes are declared illegal and void."

C.

1852.-An act respecting fugitives from labor, and slaves brought to this State prior to her admission into the Union.' Comp. L. c. 65. Sec. 1. The fugitive held to service by the law of another State may be sued by the claimant, or the latter may have a warrant, and, when seized, shall be brought "before any judge or justice of this State, or before any magistrate of a county, city, or town corporate, and upon proof to the satisfaction of such judge or magistrate, either by oral testimony or affidavit," that the fugitive owes the service, the magistrate shall give a certificate, which shall be a warrant to

In the matter of Perkins, 2 Cal. 424, this statute is held not contrary to anything in the Constitution of the United States; it is regarded as within the police power of the State, and the doctrine of Prigg's case is not disputed. It is further held not to be inconsistent with the State Bill of Rights. Judge Anderson, ib. P. 455, expressly says, that the 18th section of the first article of the Constitution does not emancipate slaves brought into the State, and that the owner has the right to take them away as slaves.

the claimant to remove; the testimony of the alleged fugitive shall not be admitted; and the certificate shall be conclusive. 2. Penalties for obstructing a claimant in the recovery of his property. 3. Duties of officers, and penalties for neglect. 4. (An amend. inserted from a stat. of 1853.) A person brought into this State, from another wherein held to service, before the admission of this State into the Union, to be deemed a fugitive. (By an amendment of 1854, c. 22, the continuance of this is limited to the 15th April, 1855.) 5. Claimants not allowed to hold slaves in servitude in this State.

1854,' c. 54. An act amending the Code of practice. Sec. 42, 3d. “Indians, or persons having one half or more of Indian blood, and negroes, or persons having one half or more of negro blood," shall not be witnesses in a case to which a white is a party.

577. LEGISLATION OF THE TERRITORY OF NEW MEXICO.

It cannot be disputed that the law of the Mexican republic had, in New Mexico, when the country was acquired by the United States, that territorial extent which would cause its continuance, as the local law, to determine all rights and obligations of private persons, until changed by competent legislative authority.

Under the decrees of the former sovereign, which had declared free all who in that country had been held as slaves, it should probably have been held that the law of New Mexico had not merely changed the condition of those then held there in slavery, but had attributed the right of personal liberty universally, that is, to all natural persons, so far as they might be within the jurisdiction, and thereby prevented the recognition of slavery as the condition of any person thereafter introduced into the country from some other jurisdiction.

If this had been the effect of the law of New Mexico, it may be urged that this law, continuing to exist as the local law of the Territory after the acquisition of the country by the United States, would prevent the judicial recognition of the right of the

1 An act of 1851. An act to regulate proceedings in criminal cases. Compiled Laws, ch. 121, § 665, authorizes the governor to deliver up fugitives from justice on demand.