But Mr. Calhoun appears to have asserted the doctrine as a political rule only. Such an interpretation of his language would not be inconsistent with the doctrine of private law which he is believed to have held, that slavery is legal, or judicially cognizable, in all territory belonging to the United States, independently of positive legislation; that is, even when no statute has been enacted on the subject by the possessors of sovereign power in and for the territory, (whoever they may be,) and that it will continue to be lawful there, until prohibited by such statute. This question, which is purely one of positive law, that is, of law applicable by judicial tribunals, is to be examined in a later portion of this treatise.

§ 505. On page 448 of the report, Chief Justice Taney says of the powers of the Government in this respect, "Whatever it acquires it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interest of the whole people of the Union in the exercise of the powers specifically granted." And on the same page, "it [the Territory] was acquired by the General Government as the representative and trustee of the people of the United States, and it must, therefore, be held in that character for their common and equal benefit, for it was the people of the several States, acting through their agent and representative, the Federal Government, who, in fact, acquired the Territory in question, and the Government holds it

any of them shall be deprived of its full and equal right in any territory of the United States, acquired or to be acquired.

Resolved, That the enactment of any law, which should directly, or by its effects, deprive the citizens of any of the States of this Union from immigrating, with their property, into any of the territories of the United States, will make such 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.

"Resolved, That it is a fundamental principle in our political creed, that a people in forming a Constitution have the unconditional right to form and adopt the government which they may think best calculated to secure their liberty, prosperity, and happiness; and that, in conformity thereto, no other condition is imposed by the Federal Constitution on a State in order to be admitted into this Union, except that its constitution shall be republican, and that the imposition of any other by Congress would not only be in violation of the Constitution, but in direct conflict with the principle upon which our political system rests.”

1

Ante, p. 423, note.

for their common use until it shall be associated with the other States as a member of the Union."

But it would appear that so far as this doctrine of the equality of the States or of the people of the States in respect to the use and benefit of the Territory was recognized by the Chief Justice, and by Justices Wayne and Grier affirming the opinion of the court, that they agreed with Justices McLean and Curtis, in considering it as a political principle only; a rule to govern Congress in the exercise of the power of determining all rights and obligations of private persons in the Territory where not limited by provisions in the Constitution of the nature of a bill of rights operating as private law. As to the extent of the guarantee of private property in this part of the Constitution, there was a difference of opinion; but no one of these members of the Court appears to have taken the principle either as a rule determining the location of juridical power, in respect to the status or condition of private persons, or as one which could in itself enable judicial tribunals to determine any rights or obligations of private

persons.

Justices Daniel, Campbell, and Catron, on the contrary, all, with more or less consistency, recognize the proposition as a juridical rule, one by which the status of persons in the Territories may be judicially determined.

Judge Daniel, on page 489 of the report, (ante, p. 532,) regards the right asserted, in denying the power of Congress, as one belonging to the individual citizens of the slave-holding States as those who, with the individual citizens of the non-slaveholding States, are equally entitled to whatever use or benefit private persons may have of the territory. Judge Daniel therefore applies the rule as private law.

Judge Campbell, on the other hand, regards the right thus vindicated as one belonging to the States in their political personality; or, taking the principle as a rule of public law, holds that the rights and obligations of natural persons residing in the Territories, which are incident to personal condition or status, are not dependent on the national powers or those vested in the federal Government, but depend upon the juridical will of some

other possessors of sovereign power, for whom that Government is, in the Territory, only the agent or trustee.

Judge Catron also spoke of the right vindicated against the power of Congress as the right of the States, asserting that the slave-holder's right is protected in virtue of the equality of his State, (p. 527 of the report, ante, p. 540.) At the same time Judge Catron seems to rely on the protective effect of the treaty with France as creating an exception to the ordinary powers of Congress in respect to status of persons in the Territory, and to recognize Congress as the only possessor of juridical power in such Territory.

§ 506. The opinions of the several justices in Dred Scott's case, on the question of the constitutionality of the act of Congress of 1820 in prohibiting slavery, have been here cited under the general inquiry whether State legislatures, or (assuming that the national Government has in the Territories the powers ordinarily held by a State Government) Congress legislating for the Territories, &c., has the power to prohibit or abolish negro slavery.1

It appears that of the six members of the Court who denied the constitutionality of the Act, four based that denial on the ground that slaves are property, in view of the Constitution operating as a bill of rights, and that the act of Congress was an infringement of that guarantee.

Of these members of the Court, Chief Justice Taney, and Justices Wayne and Grier adopting the opinion written by the Chief Justice, held that slaves are property by the national law, because rights of property in respect to them are specially recognized in the written Constitution, and also because slaves are property by common law, or an unwritten jurisprudence embraced in the national jurisprudence, independently of any specific recognition of slavery in the written Constitution.

Mr. Justice Daniel, in maintaining the protection of slavery in the Territories under the constitutional guarantee of private property, appears to have relied solely on the clauses of the written

Constitution referring to slaves, as containing the recognition of slaves, as property, by the national law.

Mr. Justice Campbell denied the power of Congress on the ground that the relation of master and slave in the Territories depends upon some other possessor of legislative or juridical power. And Judge Daniel seems to have been with Judge Campbell in this doctrine, to some extent.

Mr. Justice Catron's assertion of the exclusive power of Congress in reference to the Territory and his distinct reliance on the treaty of cession, as limiting the power in respect to Louisiana, prevent the inference that he agreed in either of the doctrines above stated; however much his language, in some parts of his opinion, may accord with one or the other.

Three distinct grounds of denying the power of Congress were therefore relied on in this case; but no one of these was supported by more than four of the nine members of the Court.1

Independently of the question whether the opinion on the constitutionality of the act of Congress was extrajudicial, if it is the reason of a decision, or the ground on which it is made, which is authoritative, this diversity of opinion, as to the governing prin

In case of a majority of votes in Kansas Territory for Constitution with no slavery, the (Lecompton) constitution to be adopted for the State by that vote under the organic law contained this clause: "no slavery shall exist in the State of Kansas, except that the right of property in slaves now in the Territory shall in no manner be interfered with." Alluding to this, President Buchanan, in his message, Dec. 8th, 1857, observes, "These slaves were brought into the Territory under the Constitution of the United States, and are now the property of their masters. This point has at length been finally decided by the highest judicial tribunal of the country, and upon this plain principle, that when a confederacy of sovereign States acquire a new territory at their joint expense, both equality and justice demand that the citizens of one and all of them have the right to take into it whatever is recognized as property by the common constitution."

The decision in Dred Scott's case was, that slavery had always been sanctioned in that Territory by the local law; Congress having had no power to alter the local law in that respect. From the President's reference to the case, it would be thought that the court had decided that slaves carried into any Territory of the U. S. are slaves still. That doctrine may be a necessary conclusion from a denial of the power in Congress on the ground that slaves are "property by the common constitution," or on the ground that the equality of the States or their citizens in the use and benefit of the Territories forbids the abolition of slavery. But neither of these two grounds was maintained by a majority of the Court. They are entirely distinct, and though some passages in Judge Catron's opinion are very similar in language, no member of the Court connected the two doctrines as the President has done in this instance.

Ram on Legal Judgment, pp. 19-23.

§ 501. Mr. Justice Curtis, who in the same case very fully examined the several points involved in the question of the constitutionality of the Missouri Compromise, considers, on pp. 604– 619, the preliminary inquiry, or what may be distinguished as being more particularly the question of public law, that of the source and extent of the powers of Congress over the Territories, as determinable from the language of the Constitution and from the practice of the Government in its several departments.1 On page 619, Judge Curtis proceeds to say:

"It appears, however, from what has taken place at the bar, that notwithstanding the language of the Constitution, and the long line of legislative and executive precedents under it, three different and opposite views are taken of the power of Congress respecting slavery in the Territories.

"One is, that though Congress can make a regulation prohibiting slavery in a Territory, they cannot make a regulation allowing it; another is, that it can neither be established nor prohibited by Congress, but that the people of a Territory, when organized by Congress, can establish or prohibit slavery; while the third is, that the Constitution itself secures to every citizen who holds slaves, under the laws of any State, the indefeasible right to carry them into any Territory, and there hold them as property.

"No particular clause of the Constitution has been referred to at the bar in support of either of these views. The first seems to be rested upon general considerations concerning the social and moral evils of slavery, its relations to republican Governments, its inconsistency with the Declaration of Independence and with natural right.

cided, 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." Here, as is common in these questions, the judge determines whether natural persons may or may not be property according to his individual sense of natural right, without seeming to recognize any exterior judicial criterion. It seems that, of the six Justices who declared the Act of Congress to be unconstitutional, only four, or perhaps only three, held that slaves are recognized by the national jurisprudence as ordinary property.

1 This practice is hereinafter to be described in the history of the local law of the several Territories and States formed in them.