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Ca. VIII.]



of the whole body of the people; and in endea trial by jury, the habeas corpus, and every prinvoring to settle, by a judicial decision, a political ciple designed to protect personal liberty, is question which engrosses and distracts the coun extended, by force of the Constitution itself over try; but the undertaking was beyond its compe every new territory. That proposition cannot tency, both legally and potentially. It had no be maintained at all. How do you arrive at it right to decide; no means to enforce the decision; by any reasoning or deduction? It can only be no machinery to carry it into effect; no penalties arrived at by the loosest of all possible construcof fines or jails to enforce it; and the event has tions. It is said that this must be so, or else the corresponded with these inabilities. Far from right of habeas corpus would be lost. Undoubtsettling the question, the opinion itself has be- edly, these rights must be conferred by law before come a new question, more virulent than the for- they can be enjoyed in a territory." mer; has become the very watchword of parties; Mr. Calhoun replied, contending that the Constitunas gone

into party creeds and platforms—bring- tion could be so extended, and, being the supreme ing the court itself into the political field—and law of the land, would carry along with it procondemning all future appointments of federal tection to persons and property, to wit, the owner judges (and the elections of those who make the and his slaves; and would override and control appointments, and of those who can multiply all laws opposed to that protection. He boldly judges by creating new districts and circuits) to avowed his intent to carry slavery into the territhe test of these decisions. This being the case, tories under the wing of the Constitution, and and the evil now actually upon us, there is no denounced as enemies to the south all who opresource but to face it—to face this new ques- posed it. tion-examine its foundations—show its errors -and rely upon reason and intelligence to work It was in the year 1820 that this great com. out a safe deliverance for the country.

promise was effected. Twenty-five years after

wards it received a re-enactment, and under cir. This is the exposition of the first great error cumstances the most impressive. It was in the of the court, as I hold it, in the part of its opinion year 1845, and on the occasion of the legislawhich I propose to examine; the error of assum tive admission of the state of Texas into the ing without right, and without necessity, to decide Union. In the previous year, annexation by upon the constitutionality of the Missouri com treaty had been refused; legislation was held by promise act, and the self-extension of the Con many to be the indispensable basis to any incor. stitution to territories. The second great error poration; and, accordingly, that mode of annexais in the decision itself upon these questions. tion prevailed. Early in the session, 1844–45,

the last of Tyler's administration, a joint resoluThe novelty and strangeness of this proposi- tion was brought into the IIouse of Representation (self-extension of the Constitution) called up tives for the admission of that republic as a state Mr. Webster (1849) who repulsed, as an ab into the Union.

This brings down surdity and as an impossibility, the scheme of the sanctions of the Missouri compromise to the extending the Constitution to territories. His year 1845—being twenty-five years after its first words were; “let me şay, that in this general enactment-ample time, it might be supposed, sense, there is no such thing as extending the for its constitutionality to be questioned, if there Constitution. The Constitution is extended over was ground for it; and ample time for it to have the United States, and nothing else. It cannot been found out, if such was the fact, that its en. be extended over any thing, except the old states actment worked an inequality of the states, and and the new states that shall come in hereafter, involved degradation and injury to a part of when they do come in. There is a want of ac them.

The year 1850 presents the curacy of ideas in this respect that is quite last instance to be given of southern sanction of remarkable, among eminent gentlemen, and es the Missouri compromise line-a date sufficiently pecially professional and judicial gentlemen. It recent to avoid the statute of limitations, if any seems to be taken for granted, that the right of date can be late enough to prevent the running


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of that statute against mutable politicians. Mr. consequence of this consolidation of the slave Calhoun was then dead; Mr. Davis, of Missis states and vast acquisition of slave territory. sippi, seemed to succeed to the head of his party; and in the discussion of Mr. Clay's compromise The prohibition of slavery in a territory is scheme, reported from the committee of thirteen, assumed to work an inequality in the states, aldemanded the extension of the Missouri line to lowing one part to carry its property with it, the the Pacific Ocean, and the recognition of slavery other, not. This is a mistake-a great error of on the south side of that line; and declared these fact—the source of great errors of deduction. terms to be the least he would take.

The citizens of all the states, free and slave, are The understanding was, that Congress had power precisely equal in their capacity to carry their to legislate upon slavery in the territories, and to property with them into territories. Each may abolish it therein when it saw fit, and that such carry whatever is property by the laws of nature; legislation worked no inequality in the states; neither can carry that which is only property by and in the particular case of the Missouri com statute law, and the reason is, because he cannot promise act, the partition of the province of carry with him the law which makes it property. Louisiana between free and slave states was a Either may carry the thing which is the subject continuation of the policy which divided the ter of this local property, but neither can carry the ritory east of the Mississippi, between the same law which makes it so. The Virginian may carry classes of states; and as necessary then to save his man slave; but he cannot carry the Virginian the Union as the ordinance of 1787 had been to law which makes him a slave. The citizen of save it.

Massachusetts may carry the pile of money

which, under a state law, constitutes a bank ; Those who suppose that there was no object in but he cannot carry the law or charter which view in this abrogation of the Missouri compro makes it a bank; and his treasure is only a pile mise, but merely to make Kansas a free state, of money; and besides being impossible, it would are far behind the state of the facts, and can have be absurd, and confusion confounded to be otherhad but little opportunity of knowing the inten wise. For, if the citizen of one state inight carry tions of the prime movers of that measure his slave state law with him into a territory, the those who ruled the council that commanded it. citizens of every other slave state might do the Certainly that was one of the objects; but there same; and then what Babylonish confusion, not were others far beyond it, far transcending it in merely of tongues, but of laws, would be found importance, and of which the establishment of there! Fifteen different codes, as the slave states Kansas as a slave state was only an introduction, now number, and more to come. and a means of attainment. To form the slave slave slate has a servile code of its own, differing states into a unit, for federal elections and legis- from others in some respects—and in some,

radilation, by the revival of the slavery question, was cally; as much so as land, in the eye of the law, one object, counting upon the federal patronage differs from cattle. Thus, in some states, as in to gain as much help from the free states as Virginia, and others, slaves are only chattels; in would give the slave states the majority. Vast others, as in Kentucky and Louisiana, they are acquisitions of free territory to the southward, real estate. How would all these codes work to be made slave (besides Cuba) was another together in a territory under the wing of the object; and for this purpose, the principles of Constitution, protecting all equally? the Kansas-Nebraska bill were doubly contrived; first, to carry slavery into these free territories Mr. Calhoun (1848) declared; “I deny that hy the Constitution; next, to establish it by the the laws of Mexico can have the effect attributed inhabitants of the states, enough southern people to them (that of keeping slavery out of New going in to dominate over the feeble and ignorant Mexico and California.) As soon as the Treaty natives. Separation of the slave states, or dom between the two countries is ratified, the soverination over the free states, driving out of the eignty and authority of Mexico in the territory Union the north Atlantic states, was to be the acquired ay it becomes extinct, and that of the

For every




United States is substituted in its place, convey whose ancestors were imported into this country, ing the Constitution, with its overriding control and sold as slaves, become a member of the over all the laws and institutions of Mexico in political community formed and brought into consistent with it." This is the declared effect existence by the Constitution of the United States, of the transmigration of the Constitution to free and as such become entitled to all the rights, and territory by the author of the doctrine; and privileges, and immunities, guaranteed by that great is the extent of country, either acquired or instrument to the citizen? One of which rights to be acquired, in which the doctrine is to have is the privilege of suing in a court of the United application. All New Mexico and California, at States in the cases specified in the Constitution. the time it was broached-all the territories now It will be observed, that the plea applies to held, wherever situated, and as much as can be that class of persons only, whose ancestors were added to them—these additions have already negroes of the African race, and imported into been considerable, and vast and varied accessions this country, and sold and held as slaves. The are still expected. Arizonia has been acquired; only matter in issue before the court, therefore, fifty millions were offered to Mexico for her is, whether the descendants of such slaves, when northern half, to include Monterey and Saltillo; they shall be emancipated, or who are born of a vast sum is now offered for Sonora and Sinaloa, parents who had become free before their birth, down to Guyamas; Tehuantepec, Nicaragua, Pan are citizens of a state, in the sense in which the ama, Darien, the Spanish part of San Domingo, word citizen is used in the Constitution of the Cuba! with islands on both sides of the tropical United States. And this being the only matter continent. Nor do we stop at the two Americas, in dispute on the pleadings, the court must be their coasts and islands, extensive as they are; understood as speaking in this opinion of that but circumvolving the terraqueous globe, we look class only, that is, of those persons who are the wistfully at the Sandwich Islands, and on some descendants of Africans who were imported into gem in the Polynesian group; and, plunging to this country, and sold as slaves. the Antipodes, pounce down upon Formosa in The situation of this population was altogether the Chinese Sea. Such were the schemes of the unlike that of the Indian race. The latter, it is last administration, and must continue, if its true, formed no part of the colonial communities, policy should continue. Over all these provinces, and never amalgamated with them in social conisthmuses, islands, and ports, now free, our Con nections or in government. But although they stitution must spread, (if we acquire them, and were uncivilized, they were yet a free and indethe decision of the Supreme Court stands) over pendent people, associated together in nations or riding and overruling anti-slavery law in their tribes, and governed by their own laws. Many respective limits, and planting African slavery of these political communities were situated in in its place, beyond the power of Congress or territories to which the white race claimed the the people there to prevent it.

ultimate right of dominion. But that claim was acknowledged to be subject to the right of the

Indians to occupy it as long as they thought II. OPINION OF THE COURT

proper, and neither the English nor color:ial governments claimed or exercised


dominion over Ir becomes our duty to decide whether the the tribe or nation by whom it was occupied, nor facts stated in the plea, are or are not sufficient claimed the right to the possession of the territo show that the plaintiff is not entitled to sue as tory, until the tribe or nation consented to cede a citizen in a court of the United States.

it. These Indian governments were regarded and This is certainly a very serious question, and treated as foreign governments, as much so as if one that now for the first time has been brought an ocean had separated the red man from the for decision before this court. But it is brought white; and their freedom has constantly been here by those who have a right to bring it, and it acknowledged, from the time of the first emigrais our duty to meet it and decide it.

tion to the English colonies to the present day, The question is simply this: Can a negro, I by the different governments which succeeded


It was

each other. Treaties have been negotiated with of the United States was framed and adopted. them, and their alliance sought for in war; and But the public history of every European nation the people who compose these Indian political displays it in a manner too plain to be mistaken. communities have always been treated as foreign They had for more than a century before been ers not living under our government. It is true regarded as beings of an inferior order, and alto that the course of events has brought the Indian gether unfit to associate with the white race, tribes within the limits of the United States under either in social or political relations; and so far subjection to the white race; and it has been inferior, that they had no rights which the white found necessary, for their sake as well as our man was bound to respect; and that the negro own, to regard them as in a state of pupilage, might justly and lawfully be reduced to slavery and to legislate to a certain extent over them for his benefit. He was bought and sold, ana and the territory they occupy. But they may, treated as an ordinary article of merchandise and without doubt, like the subjects of any other traffic, whenever a profit could be made by it. foreign government, be naturalized by the author. This opinion was at that time fixed and universa: ity of Congress, and become citizens of a state, in the civilized portion of the white race. and of the United States; and if an individual regarded as an axiom in morals as well as in hould leave his nation or tribe, and take up his politics, which no one thought of disputing, or abode among the white population, he would be supposed to be open to dispute; and men in entitled to all the rights and privileges which every grade and position in society, daily and would belong to an emigrant from any other habitually acted upon it in their private pursuits, foreign people.

as well as in matters of public concern, without

doubting for a moment the correctness of this It becomes necessary, therefore, to determine opinion. who were citizens of the several states when the And in no nation was this opinion more firinly Constitution was adopted. And in order to do fixed or more uniformly acted upon, than by the this, we must recur to the governments and insti- English government and English people. They tutions of the thirteen colonies, when they sepa not only seized them on the coast of Africa, and rated from Great Britain and formed new sove sold them or held them in slavery for their own reignties, and took their place in the family of use; but they took them as ordinary articles of independent nations. We must inquire who, at merchandise, to every country where they coula that time, were rerognized as the people or citi make a profit on them, and were far more extenzens of a state, whose rights and liberties had sively engaged in this commerce than any other been outraged by the English government; and nation in the world. who declared their independence, and assumed The opinion thus entertained and acted upon in the powers of government to defend their rights England, was naturally iinpressed upon the colo by force of arms.

nies they founded on this side of the Atlantic. In the opinion of the court, the legislation and And, accordingly, a negro of the African race histories of the times, and the language used was regarded by them as an article of property, in the Declaration of Independence, show, that and held, and bought and sold as such, in every neither the class of persons who had been im one of the thirteen colonies which united in ported as slaves, nor their descendants, whether the Declaration of Independence, and afterwards they had become free or not, were then acknowl formed the Constitution of the United States. edged as a part of the people, nor intended to be The slaves were more or less numerous in the ircluded in the general words used in that mem different colonies, as slave labor was found more orable instrument.

or less profitable. But no one seems to have It is difficult at this day to realize the state of doubted the correctness of the prevailing opinion public opinion in relation to that unfortunate race, of the time. which prevailed in the civilized and enlightened portions of the world at the time of the Declara The language of the Declaration of Inde tion of Independence, and when the Constitution pendence is equally conclusive:




It begins by declaring that, when in the course new states. That power is plainly given; and if of human events it becomes necessary for one a new state is admitted, it needs no further legispeople to dissolve the political bands which have lation by Congress, because the Constitution itconnected them with another, and to assume self defines the relative rights and powers, and among the powers of the earth the separate and duties of the state, and the citizens of the state, equal station to which the laws of nature and na and the federal government. But no power is ture’s God enti ile them, a decent respect for the given to acquire a territory to be held and govopinions of mankind requires that they should erned permanently in that character. declare the causes which impel them to the sep And indeed the power exercised by Congress aration.”

to acquire territory and establish a government It then proceeds to say: “We hold these

“We hold these there, according to its own unlimited discretion, truths to be self-evident: that all men are created was viewed with great jealousy by the leading equal; that they are endowed by their Creator statesmen of the day. And in the Federalist, with certain unalienable rights; that among them (No. 38,) written by Mr. Madison, he speaks of is life, liberty, and the pursuit of happiness; that the acquisition of the Northwestern Territory by to secure these rights, governments are instituted, the confederated states, by the cession from Vir. deriving their just powers from the consent of ginia, and the establishment of a government the governed."

there, as an exercise of power not warranted by The general words above quoted would seem the Articles of Confederation, and dangerous to to embrace the whole human family, and if they the liberties of the people. And he urges the were used in a similar instrument at this day adoption of the Constitution as a security and would be so understood. But it is too clear for safeguard against such an exercise of power. dispute, that the enslaved African race were not We do not mean, however, to question the interded to be included, and formed no part of power of Congress in this respect. The power the people who framed and adopted this declara to expand the territory of the United States by tion; for if the language, as understood in that the admission of new states is plainly given; and day, would embrace them, the conduct of the in the construction of this power by all the depart. distinguished men who framed the Declaration ments of the government, it has been held to auof Independence would have been utterly and thorize the acquisition of territory, not fit for adflagrantly inconsistent with the principles they mission at the time, but to be admitted as soon asserted; and instead of the sympathy of man as its population and situation would entitle it to kind, to which they so confidently appealed, they admission. It is acquired to become a state, and would have deserved and received universal re not to be held as a colony and governed by Conbuke and reprobation.

gress with absolute authority; and as the pro

priety of admitting a new state is committed to This brings us to examine by what provision the sound discretion of Congress, the power to of the Constitution the present federal govern- acquire territory for that purpose, to be held by ment, under its delegated and restricted powers, the United States until it is in a suitable condition is authorized to acquire territory outside of the to become a state upon an equal footing with the original limits of the United States, and what other states, must rest upon the same discretion, powers it may exercise therein over the person It is a question for the political department of or property of a citizen of the United States, the government, and not the judicial; and whatwhile it remains a territory, and until it shall be ever the political department of the government admitted as one of the states of the Union. shall recognize as within the limits of the United

There is certainly no power given by the Con- States, the judicial department is also bound to stitution to the federal government to establish recognize, and to administer in it the laws of the or maintain colonies bordering on the United United States, so far as they apply, and to mainStates or at a distance, to be ruled and governed tain in the territory the authority and rights of at its own pleasure; nor to enlarge its territorial the government, and also the personal rights and limits in any way, except by the admission of rights of property of individual citizens, as se

Vol. IJI-67

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