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the right or power of any State to elevate persons (or, as he would say, property) of African descent to citizenship of the United States, "by any direct or indirect proceeding," so as to entitle them to sue, or be sued, in the Federal tribunals. And, having thus put Dred Scott out of court, and finished the case, he proceeds to deal with the political questions introduced and discussed by Chief Justice Taney, in order "to put them finally to rest." He is horror-struck at the "inequalities," the disfranchisement, and the degradation, involved in the prohibition of Slavery in the Federal territories, which he reprehends and stigmatizes as follows:

"Nothing can be more conclusive to show the equality of this with every other right in all the citizens of the United States, and the iniquity and absurdity of the pretension to exclude or to disfranchise a portion of them, because they are the owners of slaves, than the fact that the same instrument, which imparts to Congress its very existence, and its every function, guarantees to the slaveholder the title to his property, and gives him the right to its, reclamation throughout the entire extent of the nation; and, further, that the only private property which the Constitution has specifically recognized, and has imposed it as a direct obligation, both on the States and the Federal Government, to protect and enforce, is the property of the master in his slave; no other right of property is placed by the Constitution upon the same high ground, nor shielded by a similar'guarantee."

There is much more of this, but the above must suffice. Mr. Daniel, pushing his doctrines to their legitimate result, pronounces the Ordinance of '87 only equal in constitutionality and validity with the Missouri Restriction-that is to say, essentially null and void.

Mr. Justice Campbell, of Alabama,

4 In his "Historical and Legal Examination of that part of the Decision of the Supreme Court,

followed with a general assent to the views of Chief Justice Taney.

Mr. Justice Catron, of Tennessee, concurs with Justice Nelson, that Dred Scott has no right to freedom, at the hands of this court, on the ground of his two years' residence in Illinois; but he dissents from the Chief Justice's notion that the power over the territories, expressly given to Congress by the Constitution, has no force or application beyond the territory possessed by us when that Constitution was framed. In fact, as he had been hanging men for the last twenty years under this very power, he could not well do otherwise. He says:

"It is due to myself to say, that it is asking much of a judge, who has for nearly twenty years been exercising jurisdiction from the Western Missouri line to the Rocky Mountains, and, on this understanding of the Constitution, inflicting the extreme penalty of death for crimes committed where the direct legislation of Congress was the only rule, to agree that he had all the while been acting in mistake, and as an usurper.

"More than sixty years have passed away since Congress has exercised power to govern the territories, by its legislation directly, or by territorial charters, subject to repeal at all times; and it is now too late to call that power in question, if this Court could disregard its own decisions, which it cannot do, as I think.”

Several points in his opinion evince a sturdy independence; yet he concludes that that clause of the Constitution which provides that "the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States," gives slaveholders an indefeasible right to carry their slaves into, and hold them in, the territories.

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CALHOUN AND BENTON ON TANEY'S LAW.

opinion of the Court, as pronounced by Chief Justice Taney in this celebrated case, is, in essence, but an amplification of certain resolves submitted by Mr. Calhoun to the United States Senate, in February, 1847, in the following language:

"Resolved, That the Territories of the United States belong to the several States composing this Union, and are held by them as their joint and common property.

"Resolved, That Congress, as the joint agent and representative of the States of the Union, has no right to make any law, or do any act whatever, that shall directly, or by its effects, make any discrimination between the States of this Union, by which any one of them shall be deprived of its full and equal rights in the territory of the United States, acquired or to be acquired.

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Resolved, That the enactment of any law which would directly, or by its effects, deprive the citizens of any of the States of this Union from emigrating, with their property, into any of the Territories of the United States, would make such a discrimination; and would, therefore, be a violation of the Constitution, and the rights of the States from which such citizens emigrated, and in derogation of that perfect equality which belongs to them as members of this Union, and would tend directly to subvert

the Union itself."

The resolve submitted to the Democratic National Convention of 1848, by Mr. William L. Yancey, and unceremoniously rejected by it, 216 to 36, as will have been seen 5 -sets forth the same doctrine more concisely and abruptly.

6

Col. Benton, himself a life-long slaveholder and upholder of Slavery, thus forcibly refutes, from a conservative and legal standpoint, the Calhoun-Yancey dogma:

"The prohibition of Slavery in a territory is assumed to work an inequality in the States, allowing one part to carry its property with it-the other, not. This is a mistake

a great error of fact-the source of great errors of deduction. The citizens of all the States, free and slave, are precisely equal in their capacity to carry their property with

5 See page 192.

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them into territories. Each may carry whatther can carry that which is only property ever is property by the laws of nature: neiby statute law; and the reason is, because he cannot carry with him THE LAW which MAKES which is the subject of this local property; it property. Either may carry the thing but neither can carry the law which makes it so. The Virginian may carry his manslave; but he cannot carry the Virginian law which makes him a slave. The citizen of Massachusetts may carry the pile of money which, under a State law, constitutes a bank; but he cannot carry the law or charter which makes it a bank: and his treasure is only a pile of money; and, besides being impossible, it would be absurd, and confusion confounded, to be otherwise. For, if the citizen of one State may carry his Slave State law with him into a territory, the citizens of every other Slave State might do the same; and then what Babylonish confusion, not merely of tongues, but of laws, would be found there! Fifteen different codes, as the Slave States now number, and more to come. For every Slave State has a servile code of its own, differing from others in some respects—and in some, radically: as much so as land, in the eye of the law, differs from cattle. Thus, in some States, as in Virginia and others, slaves are only chattels: in others, as in Kentucky and Louisiana, they are real estate. How would all these codes work

together in a territory under the wing of the Constitution, protecting all equally; no law of Congress there, or of the territory, to reconcile and harmonize them by forming them into one; no law to put the protecting power of the Constitution into action; but of itself, by its own proper vigor, it is to give general and equal protection to all slaveholders in the enjoyment of their property-each, according

to the law of the State from which he came! For, there being no power in Congress, or the Territorial Legislature, to legislate upon Slavery, the whole subject is left to the Constitution and the State law! that law which

cannot cross the State line! and that Constitution which gives protection to slave property but in one instance, and that only in States, not in Territories-the single instance of recovering runaways. The Con

stitution protect slave property in a territory! when, by that instrument, a runaway from the territory or into the territory cannot be reclaimed! Beautiful constitutional protection that! only one clause under it to protect slave property; and that limited, in express words, to fugitives between State and State! and but one clause in it to protect the master against his slaves, and that limited to States! and but one clause in it

6 In his "Examination," aforesaid.

to tax slaves as property, and that limited to States! and but one clause in it to give a qualified representation to Congress, and that limited to States. No; the thing is impossible. The owner cannot carry his Slave State law with him into the Territory; nor can he carry it into another Slave State, but must take the law which he finds there, and have his property governed by it; and, in some instances, wholly changed by it, and rights lost, or acquired, by the change."

To the same effect, Mr. Webster, when resisting, in 1848, the attempt, on a bill organizing the Territory of Oregon, to fasten a 'rider" extending the Slave line of 36° 30′ to the Pacific, refuted this doctrine as follows:

"The Southern Senators say we deprive them of the right to go into these newly acquired territories with their property. We certainly do not prevent them from going into those territories with what is, in general law, called property. But these States have, by their local laws, created a property in persons; and they cannot carry these local laws with them. Slavery is created and exists by a local law, which is limited to a certain section; and it is asked that Congress shall establish a local law in other territories to enable Southern Senators to carry their particular law with them. No man can be held as a slave unless the local law accompany him."

Justice McLean, of Ohio, in his opinion dissenting from that of the Court in this case of Dred Scott,

says:

"Will it be said that the slave is taken as property, the same as other property which the master may own? To this I answer, that colored persons 'are made property by the law of the State, and no such power has been 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 coërce

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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 domicile? One thing is certain, that its origin has been very recent, and it is unknown to the laws of any civilized country. It is said that the territories are the common property of the States, and that every man has a right to go there with his property. But the Court This is not controverted. 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. Suppose a master of a slave in a British island owned a million of property in England; would that authorize him to take his slaves with him to England? The Constitution, in express terms, recognizes the status of Slavery as founded on the municipal law: 'No person held to service or labor in one State, under the laws thereof, escaping to another, shall,' etc. Now, unless the fugitive escape from a place where, by the municipal law, he is held to labor, this provision affords no remedy to the master. What can be more conclusive than this? Suppose a slave escape from a territory where Slavery is not authorized by law, can he be reclaimed? 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 decided, can be considered as authority. I shall certainly not regard it as such. The question of jurisdiction, being before the Court, was decided by them authoritatively, but nothing beyond that question. A slave is not a mere chattel. He bears the impress of his Maker, and is amenable to the laws of God and man; and he is destined to an endless existence."

To the same effect, Justice Curtis, of Massachusetts, in his dissenting opinion, thus traverses the judgment of the Court:

"Is it conceivable that the Constitution 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 municipal regulations which were essential to the existence of Slavery? Is it not more rational to conclude that they who frained and adopted the Con

JUDGES CURTIS AND GASTON ON TANEY.

stitution 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; and that they must cease to be available as property when their owners voluntarily place them permanently within another jurisdiction, where no municipal laws on the subject of Slavery exist?

261

"Of this, there can be no doubt. At the time of the ratification of the Articles of Confederation, all free, native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens."

He proceeds to cite, in support of this averment, the judgment of the Supreme Court of North Carolina in the case of the State against Manuel, wherein William Gaston-by far the most eminent jurist of whom that State could ever boast-pronounced the opinion of the Court in the fol

Moreover, if the right exists, what are its limits, and what are its conditions? If citizens of the United States have a 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 laws of any civil-lowing terms : ized country, the power to introduce and permanently continue diverse systems of foreign municipal law, for holding persons in Slavery?"

Justice Curtis is an ultra conservative of the State-street (Boston) school -a life-long follower of Mr. Webster, especially in his later and more lamentable days—and yet his opinion delivered in this case evinces considerably more freedom and boldness than that of Judge McLean. Though couched in judicial and respectful language, it constantly, and pretty clearly, intimates not merely that the judgment of the Court is contrary both to law and to fact, but that its authors well know such to be the case. In reply to Chief Justice Taney's disquisition as to the opinions and views of our Revolutionary statesmen, Mr. Curtis bluntly says:

“To determine whether any free persons, descended from Africans held in Slavery, were citizens of the United States under the Confederation, and consequently at the time of the adoption of the Constitution of the United States, it is only necessary to know whether such persons were citizens of either of the States under the Confederation, at the time of the adoption of the Constitution.

"According to the laws of this State, all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Bewithin the dominions of the King of Great fore our Revolution, all free persons born Britain, whatever their color or complexion, were native-born British subjects those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British Colonies. Slaves were not, in moment the incapacity, the disqualification legal parlance, persons, but property. The of Slavery was removed, they became persons, and were then either British subjects, or not British subjects, according as they were or were not born within the allegiance of the British king. Upon the Revolution, North Carolina than was consequent on the no other change took place in the laws of transition from a colony dependent on a European king to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen; and therefore, if born within North Carolina, are citizens of North Carolina; and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one, and paid a public tax; and it is a matter of universal notoriety, that, under it, free persons, without regard to color, claimed and exercised

the franchise, until it was taken from free men of color a few years since, by our amended Constitution."

Continuing his review of the Chief Justice's assumptions, Judge Curtis says:

"It has been often asserted that the Constitution was made exclusively by and for the white race. It has already been shown that, in five of the thirteen original States, colored persons then possessed the elective franchise, and were among those by whom the Constitution was ordained and established. If so, it is not true, in point of fact, that the Constitution was made exclusively by the white race. And that it was made exclusively for the white race is, in my opinion, not only an assumption not warranted by anything in the Constitution, but contradicted by its open declaration, that it was ordained and established by the people of the United States, for themselves and their posterity. And, as free colored persons were then citizens of at least five States, and so, in every sense, part of the people of the United States, they were among those for whom and whose posterity

the Constitution was ordained and established."

Judge Curtis is not content with refuting the logic of the Chief Justice. He seizes the weapons of his antagonist and turns them against him with decided effect. Witness the following:

"I do not deem it necessary to review at length the legislation of Congress having more or less bearing upon the citizenship of colored persons. It does not seem to me to have any considerable tendency to prove that it has been considered by the legislative department of the Government that no such persons are citizens of the United States. Undoubtedly, they have been debarred from the exercise of particular rights or privileges extended to white persons, but, I believe, always in terms which, by implication, admit that they may be citizens. Thus, the act of May 17, 1792, for the organization of the militia, directs the enrollment of every 'free, able-bodied, white male citizen.' An assumption that none but white persons are citizens, would be as inconsistent with the just import of this language, as that all citizens are able-bodied, or males.

"So the act of February 28, 1803 (2 Stat.

at Large, 205), to prevent the importation. of certain persons into States, when, by the laws thereof, their admission is prohibited, in its first section forbids all masters of vessels to import or bring any negro, mulatto, or other person of color, not being a native, a citizen, or registered seaman of the United States,' etc., etc.

"The acts of March 3, 1813, § 1 (2 Stat. at Large, 809), and March 1, 1817, § 3 (3 Stat. at Large, 351), concerning seamen, certainly imply that there may be persons of color, natives of the United States, who are not citizens of the United States. This

implication is undoubtedly in accordance with the fact. For not only slaves, but free persons of color, born in some of the States, are not citizens. But there is nothing in these laws inconsistent with the citizen

ship of persons of color in others of the States, nor with their being citizens of the United States.

"Whether much or little weight should be attached to the particular phraseology of these and other laws, which were not passed with any direct reference to the subject, I consider their tendency to be, as already indicated, to show that, in the apprehension of their framers, color was not a necessary qualification for citizenship. It would be strange, if laws were found on our statute-book to that effect, when, by solemn treaties, large bodies of Mexican and North American Indians, as well as free colored persons of Louisiana, have been admitted to citizenship of the United

States."

Mr. Curtis cites with effect the action of Congress in 1821 on the admission of Missouri, whereby that State was constrained to abandon and repudiate her attempt to prohibit the settlement of free negroes and mulattoes within her borders;" whereof he says:

"It is true, that neither this legislative declaration, nor anything in the Constitution or laws of Missouri, could confer or take away any privilege or immunity granted by the Constitution. But it is also true that it expresses the then conviction of the legislative power of the United States, that free negroes, as citizens of some of the States, might be entitled to the privileges and immunities of citizens in all the States."

He sums up his conclusions as to "See page 80 of this work.

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