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.
The second is drawn from considerations equally general, concerning
the right of self-government, and the nature of the political
institutions which have been established by the people of the United
States.
While the third is said to rest upon the equal right of all citizens
to go with their property upon the public domain, and the inequality
of a regulation which would admit the property of some and exclude the
property of other citizens; and, inasmuch as slaves are chiefly held
by citizens of those particular States where slavery is established,
it is insisted that a regulation excluding slavery from a Territory
operates, practically, to make an unjust discrimination between
citizens of different States, in respect to their use and enjoyment of
the territory of the United States.
With the weight of either of these considerations, when presented to
Congress to influence its action, this court has no concern. One or
the other may be justly entitled to guide or control the legislative
judgment upon what is a needful regulation. The question here is,
whether they are sufficient to authorize this court to insert into
this clause of the Constitution an exception of the exclusion or
allowance of slavery, not found therein, nor in any other part of that
instrument. To engraft on any instrument a substantive exception not
found in it, must be admitted to be a matter attended with great
difficulty. And the difficulty increases with the importance of the
instrument, and the magnitude and complexity of the interests involved
in its construction. To allow this to be done with the Constitution,
upon reasons purely political, renders its judicial interpretation
impossible--because judicial tribunals, as such, cannot decide upon
political considerations. Political reasons have not the requisite
certainty to afford rules of juridical interpretation. They are
different in different men. They are different in the same men at
different times. And when a strict interpretation of the Constitution,
according to the fixed rules which govern the interpretation of laws,
is abandoned, and the theoretical opinions of individuals are allowed
to control its meaning, we have no longer a Constitution; we are under
the government of individual men, who for the time being have power to
declare what the Constitution is, according to their own views of what
it ought to mean. When such a method of interpretation of the
Constitution obtains, in place of a republican Government, with
limited and defined powers, we have a Government which is merely an
exponent of the will of Congress; or what, in my opinion, would not be
preferable, an exponent of the individual political opinions of the
members of this court.
If it can be shown, by anything in the Constitution itself, that when
it confers on Congress the power to make _all_ needful rules and
regulations respecting the territory belonging to the United States,
the exclusion or the allowance of slavery was excepted; or if anything
in the history of this provision tends to show that such an exception
was intended by those who framed and adopted the Constitution to be
introduced into it, I hold it to be my duty carefully to consider, and
to allow just weight to such considerations in interpreting the
positive text of the Constitution. But where the Constitution has said
_all_ needful rules and regulations, I must find something more than
theoretical reasoning to induce me to say it did not mean all.
There have been eminent instances in this court closely analogous to
this one, in which such an attempt to introduce an exception, not
found in the Constitution itself, has failed of success.
By the eighth section of the first article, Congress has the power of
exclusive legislation in all cases whatsoever within this District.
In the case of Loughborough _v._ Blake, (5 Whea., 324,) the question
arose, whether Congress has power to impose direct taxes on persons
and property in this District. It was insisted, that though the grant
of power was in its terms broad enough to include direct taxation, it
must be limited by the principle, that taxation and representation are
inseparable. It would not be easy to fix on any political truth,
better established or more fully admitted in our country, than that
taxation and representation must exist together. We went into the war
of the Revolution to assert it, and it is incorporated as fundamental
into all American Governments. But however true and important this
maxim may be, it is not necessarily of universal application. It was
for the people of the United States, who ordained the Constitution, to
decide whether it should or should not be permitted to operate within
this District. Their decision was embodied in the words of the
Constitution; and as that contained no such exception as would permit
the maxim to operate in this District, this court, interpreting that
language, held that the exception did not exist.
Again, the Constitution confers on Congress power to regulate commerce
with foreign nations. Under this, Congress passed an act on the 22d of
December, 1807, unlimited in duration, laying an embargo on all ships
and vessels in the ports or within the limits and jurisdiction of the
United States. No law of the United States ever pressed so severely
upon particular States. Though the constitutionality of the law was
contested with an earnestness and zeal proportioned to the ruinous
effects which were felt from it, and though, as Mr. Chief Justice
Marshall has said, (9 Wheat., 192,) "a want of acuteness in
discovering objections to a measure to which they felt the most
deep-rooted hostility will not be imputed to those who were arrayed in
opposition to this," I am not aware that the fact that it prohibited
the use of a particular species of property, belonging almost
exclusively to citizens of a few States, and this indefinitely, was
ever supposed to show that it was unconstitutional. Something much
more stringent, as a ground of legal judgment, was relied on--that the
power to regulate commerce did not include the power to annihilate
commerce.
But the decision was, that under the power to regulate commerce, the
power of Congress over the subject was restricted only by those
exceptions and limitations contained in the Constitution; and as
neither the clause in question, which was a general grant of power to
regulate commerce, nor any other clause of the Constitution, imposed
any restrictions as to the duration of an embargo, an unlimited
prohibition of the use of the shipping of the country was within the
power of Congress. On this subject, Mr. Justice Daniel, speaking for
the court in the case of United States _v._ Marigold, (9 How., 560,)
says: "Congress are, by the Constitution, vested with the power to
regulate commerce with foreign nations; and however, at periods of
high excitement, an application of the terms 'to regulate commerce,'
such as would embrace absolute prohibition, may have been questioned,
yet, since the passage of the embargo and non-intercourse laws, and
the repeated judicial sanctions these statutes have received, it can
scarcely at this day be open to doubt, that every subject falling
legitimately within the sphere of commercial regulation may be
partially or wholly excluded, when either measure shall be demanded by
the safety or the important interests of the entire nation. The power
once conceded, it may operate on any and every subject of commerce to
which the legislative discretion may apply it."
If power to regulate commerce extends to an indefinite prohibition of
the use of all vessels belonging to citizens of the several States,
and may operate, without exception, upon every subject of commerce to
which the legislative discretion may apply it, upon what grounds can I
say that power to make all needful rules and regulations respecting
the territory of the United States is subject to an exception of the
allowance or prohibition of slavery therein?
While the regulation is one "respecting the territory," while it is,
in the judgment of Congress, "a needful regulation," and is thus
completely within the words of the grant, while no other clause of the
Constitution can be shown, which requires the insertion of an
exception respecting slavery, and while the practical construction for
a period of upwards of fifty years forbids such an exception, it
would, in my opinion, violate every sound rule of interpretation to
force that exception into the Constitution upon the strength of
abstract political reasoning, which we are bound to believe the people
of the United States thought insufficient to induce them to limit the
power of Congress, because what they have said contains no such
limitation.
Before I proceed further to notice some other grounds of supposed
objection to this power of Congress, I desire to say, that if it were
not for my anxiety to insist upon what I deem a correct exposition of
the Constitution, if I looked only to the purposes of the argument,
the source of the power of Congress asserted in the opinion of the
majority of the court would answer those purposes equally well. For
they admit that Congress has power to organize and govern the
Territories until they arrive at a suitable condition for admission to
the Union; they admit, also, that the kind of Government which shall
thus exist should be regulated by the condition and wants of each
Territory, and that it is necessarily committed to the discretion of
Congress to enact such laws for that purpose as that discretion may
dictate; and no limit to that discretion has been shown, or even
suggested, save those positive prohibitions to legislate, which are
found in the Constitution.
I confess myself unable to perceive any difference whatever between my
own opinion of the general extent of the power of Congress and the
opinion of the majority of the court, save that I consider it
derivable from the express language of the Constitution, while they
hold it to be silently implied from the power to acquire territory.
Looking at the power of Congress over the Territories as of the extent
just described, what positive prohibition exists in the Constitution,
which restrained Congress from enacting a law in 1820 to prohibit
slavery north of thirty-six degrees thirty minutes north latitude?
The only one suggested is that clause in the fifth article of the
amendments of the Constitution which declares that no person shall be
deprived of his life, liberty, or property, without due process of
law. I will now proceed to examine the question, whether this clause
is entitled to the effect thus attributed to it. It is necessary,
first, to have a clear view of the nature and incidents of that
particular species of property which is now in question.
Slavery, being contrary to natural right, is created only by municipal
law. This is not only plain in itself, and agreed by all writers on
the subject, but is inferable from the Constitution, and has been
explicitly declared by this court. The Constitution refers to slaves
as "persons held to service in one State, under the laws thereof."
Nothing can more clearly describe a _status_ created by municipal law.
In Prigg _v._ Pennsylvania, (10 Pet., 611,) this court said: "The
state of slavery is deemed to be a mere municipal regulation, founded
on and limited to the range of territorial laws." In Rankin _v._
Lydia, (2 Marsh., 12, 470,) the Supreme Court of Appeals of Kentucky
said: "Slavery is sanctioned by the laws of this State, and the right
to hold them under our municipal regulations is unquestionable. But we
view this as a right existing by positive law of a municipal
character, without foundation in the law of nature or the unwritten
common law." I am not acquainted with any case or writer questioning
the correctness of this doctrine. (See also 1 Burge, Col. and For.
Laws, 738-741, where the authorities are collected.)
The _status_ of slavery is not necessarily always attended with the
same powers on the part of the master. The master is subject to the
supreme power of the State, whose will controls his action towards his
slave, and this control must be defined and regulated by the municipal
law. In one State, as at one period of the Roman law, it may put the
life of the slave into the hand of the master; others, as those of the
United States, which tolerate slavery, may treat the slave as a
person, when the master takes his life; while in others, the law may
recognise a right of the slave to be protected from cruel treatment.
In other words, the _status_ of slavery embraces every condition, from
that in which the slave is known to the law simply as a chattel, with
no civil rights, to that in which he is recognised as a person for all
purposes, save the compulsory power of directing and receiving the
fruits of his labor. Which of these conditions shall attend the
_status_ of slavery, must depend on the municipal law which creates
and upholds it.
And not only must the _status_ of slavery be created and measured by
municipal law, but the rights, powers, and obligations, which grow out
of that _status_, must be defined, protected, and enforced, by such
laws. The liability of the master for the torts and crimes of his
slave, and of third persons for assaulting or injuring or harboring or
kidnapping him, the forms and modes of emancipation and sale, their
subjection to the debts of the master, succession by death of the
master, suits for freedom, the capacity of the slave to be party to a
suit, or to be a witness, with such police regulations as have existed
in all civilized States where slavery has been tolerated, are among
the subjects upon which municipal legislation becomes necessary when
slavery is introduced.
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 are
essential to the existence of slavery?
Is it not more rational to conclude that they who framed and adopted
the Constitution 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; 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; and that, being aware of these principles, and having
said nothing to interfere with or displace them, or to compel Congress
to legislate in any particular manner on the subject, and having
empowered Congress to make all needful rules and regulations
respecting the territory of the United States, it was their intention
to leave to the discretion of Congress what regulations, if any,
should be made concerning slavery therein? Moreover, if the right
exists, what are its limits, and what are its conditions? If citizens
of the United States have the 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 law of any
civilized country, the power to introduce and permanently continue
diverse systems of foreign municipal law, for holding persons in
slavery? I say, not merely to introduce, but permanently to continue,
these anomalies. For the offspring of the female must be governed by
the foreign municipal laws to which the mother was subject; and when
any slave is sold or passes by succession on the death of the owner,
there must pass with him, by a species of subrogation, and as a kind
of unknown _jus in re_, the foreign municipal laws which constituted,
regulated, and preserved, the _status_ of the slave before his
exportation. Whatever theoretical importance may be now supposed to
belong to the maintenance of such a right, I feel a perfect conviction
that it would, if ever tried, prove to be as impracticable in fact, as
it is, in my judgment, monstrous in theory.
I consider the assumption which lies at the basis of this theory to be
unsound; not in its just sense, and when properly understood, but in
the sense which has been attached to it. That assumption is, that the
territory ceded by France was acquired for the equal benefit of all
the citizens of the United States. I agree to the position. But it was
acquired for their benefit in their collective, not their individual,
capacities. It was acquired for their benefit, as an organized
political society, subsisting as "the people of the United States,"
under the Constitution of the United States; to be administered justly
and impartially, and as nearly as possible for the equal benefit of
every individual citizen, according to the best judgment and
discretion of the Congress; to whose power, as the Legislature of the
nation which acquired it, the people of the United States have
committed its administration. Whatever individual claims may be
founded on local circumstances, or sectional differences of condition,
cannot, in my opinion, be recognised in this court, without arrogating
to the judicial branch of the Government powers not committed to it;
and which, with all the unaffected respect I feel for it, when acting
in its proper sphere, I do not think it fitted to wield.
Nor, in my judgment, will the position, that a prohibition to bring
slaves into a Territory deprives any one of his property without due
process of law, bear examination.
It must be remembered that this restriction on the legislative power
is not peculiar to the Constitution of the United States; it was
borrowed from _Magna Charta_; was brought to America by our ancestors,
as part of their inherited liberties, and has existed in all the
States, usually in the very words of the great charter. It existed in
every political community in America in 1787, when the ordinance
prohibiting slavery north and west of the Ohio was passed.
And if a prohibition of slavery in a Territory in 1820 violated this
principle of _Magna Charta_, the ordinance of 1787 also violated it;
and what power had, I do not say the Congress of the Confederation
alone, but the Legislature of Virginia, or the Legislature of any or
all the States of the Confederacy, to consent to such a violation? The
people of the States had conferred no such power. I think I may at
least say, if the Congress did then violate _Magna Charta_ by the
ordinance, no one discovered that violation. Besides, if the
prohibition upon all persons, citizens as well as others, to bring
slaves into a Territory, and a declaration that if brought they shall
be free, deprives citizens of their property without due process of
law, what shall we say of the legislation of many of the slaveholding
States which have enacted the same prohibition? As early as October,
1778, a law was passed in Virginia, that thereafter no slave should be
imported into that Commonwealth by sea or by land, and that every
slave who should be imported should become free. A citizen of Virginia
purchased in Maryland a slave who belonged to another citizen of
Virginia, and removed with the slave to Virginia. The slave sued for
her freedom, and recovered it; as may be seen in Wilson _v._ Isabel,
(5 Call's R., 425.) See also Hunter _v._ Hulsher [Transcriber's Note:
Fulcher], (1 Leigh, 172;) and a similar law has been recognised as
valid in Maryland, in Stewart _v._ Oaks, (5 Har. and John., 107.) I am
not aware that such laws, though they exist in many States, were ever
supposed to be in conflict with the principle of _Magna Charta_
incorporated into the State Constitutions. It was certainly understood
by the Convention which framed the Constitution, and has been so
understood ever since, that, under the power to regulate commerce,
Congress could prohibit the importation of slaves; and the exercise of
the power was restrained till 1808. A citizen of the United States
owns slaves in Cuba, and brings them to the United States, where they
are set free by the legislation of Congress. Does this legislation
deprive him of his property without due process of law? If so, what
becomes of the laws prohibiting the slave trade? If not, how can a
similar regulation respecting a Territory violate the fifth amendment
of the Constitution?
Some reliance was placed by the defendant's counsel upon the fact that
the prohibition of slavery in this territory was in the words, "that
slavery, &c., shall be and is hereby _forever_ prohibited." But the
insertion of the word _forever_ can have no legal effect. Every
enactment not expressly limited in its duration continues in force
until repealed or abrogated by some competent power, and the use of
the word "forever" can give to the law no more durable operation. The
argument is, that Congress cannot so legislate as to bind the future
States formed out of the territory, and that in this instance it has
attempted to do so. Of the political reasons which may have induced
the Congress to use these words, and which caused them to expect that
subsequent Legislatures would conform their action to the then general
opinion of the country that it ought to be permanent, this court can
take no cognizance.
However fit such considerations are to control the action of Congress,
and however reluctant a statesman may be to disturb what has been
settled, every law made by Congress may be repealed, and, saving
private rights, and public rights gained by States, its repeal is
subject to the absolute will of the same power which enacted it. If
Congress had enacted that the crime of murder, committed in this
Indian Territory, north of thirty-six degrees thirty minutes, by or on
any white man, should _forever_ be punishable with death, it would
seem to me an insufficient objection to an indictment, found while it
was a Territory, that at some future day States might exist there, and
so the law was invalid, because, by its terms, it was to continue in
force forever. Such an objection rests upon a misapprehension of the
province and power of courts respecting the constitutionality of laws
enacted by the Legislature.