one thousand eight hundred and eight, but a tax or duty may be Representation of Slaves. I have already described the compromise between the slaveholding and non-slaveholding States, by which the apportionment of representatives and direct taxes is "determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three-fifths of all other persons." Fugitive Slaves. (a) The words are, " No person held to service (a) Mad. Pap. 1456, 1589; Case of Aves, 18 Pick. 193; Commonwealth v. Taylor, 3 Metcalf. 72; Prigg v. Commonwealth of Pennsylvania, 16 Peters, 539; Jones v. Van Zandt, 1 West. Law Jour. 2, 56; s. c. 5 How. 225. The act of Congress mentioned in the text has been acquiesced in so long that it may now be thought too late to question its validity. But were the question new, there would be the same reason for holding that Congress has no power to legislate concerning fugitive slaves, as has before been stated with respect to fugitives from justice; there being not only no express grant of such power, but a strong implication to the contrary. And so the States are beginning to consider and treat the matter, by taking it into their own hands. In several of them, provision is already made for a trial by jury, before the slave is delivered up; and who does not feel that where Jiberty is the question at issue, something more than summary proceedings before a magistrate should be provided? Yet according to the case of Prigg v. Commonwealth of Pennsylvania, 16 Peters, 539, all State legislation upon this subject is unconstitutional and void. It will be observed that the clause now under consideration includes only slaves “escaping from one State to another." If, therefore, a master voluntarily bring, send, or permit his slave to go into a non-slaveholding State, such case is not within the clause, there being no escape; and the slave is thereby held to be set free. The doctrine therefore now is, that none but those who are in the strictest sense fugitive slaves, can be demanded under this provision. Another serious question is, whether Congress has power to abolish slavery in the District of Columbia. The power" to exercise exclusive legislation in all cases whatsoever,” clearly includes this, unless there be some prohibition of it elsewhere; and there is nowhere any express prohi bition. But it is claimed that such prohibition is clearly implied from all the provisions on the subject of slaves. The course of argument may be thus stated. The existence of slavery was one of the chief obstacles to the formation of the Union. Without a liberal compromise of conflicting interests and opinions, this obstacle could or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due." By the act of 1793, Congress pointed out the course of proceeding. The owner of a fugitive slave or his agent is authorized to arrest him in any of the States, and take him before a federal judge or State magistrate; and, upon satisfactory proof of his title, he is to receive from the judge or magistrate a certificate thereof, which is a sufficient warrant for removing the slave back to the State from which he fled; and there is a penalty of five hundred dollars for knowingly harboring the slave or obstructing his removal. (a) The ordinance of 1787, framed a few months before the federal constitution, with the wisest forecast, for ever prohibited slavery in the North-western territory. "There shall be neither slavery nor involuntary servitude in this State, otherwise than for the punishment of crimes whereof the party shall have been duly convicted." The constitution of Ohio declares: "There shall be no slavery in this State nor involuntary servitude unless for the punishment of crime. The ordinance also contained a provision similar to that before described respecting fugitive slaves. Thus even where slavery is expressly prohibited, we do not carry the prohibition so far as in England. The fetters of a slave do not in all cases fall from him, the moment he treads upon our soil; but he cannot be retained here in slavery. (b) When Missouri was not have been overcome. The result of that compromise was the recognition of slavery by the constitution. And although it is nowhere said that Congress shall not interfere with it, further than to abolish the foreign slave-trade, yet as the same conflicting interests and opinions still exist, there is the same reason for continuing the compromise that there was for making it; and therefore the spirit if not the letter, of the constitution is opposed to any interference with domestic slavery by Congress. In other words, the faith of the nation is tacitly pledged to leave the subject of slavery wholly to the States in which it exists. But, on the other hand, it is said that there can be no implication against human liberty. The result of the slave compromise is to be found in the constitution, and it goes no further than the words import. Had it been designed to prohibit Congress from abolishing slavery in the District of Columbia, or the slave-trade between the States, it would have been so expressed. But this is so far from being done, that there is an implied admission that the slave compromise itself may be changed after 1808, by declaring that it shall not be done before. There is, then, no other pledge than the constitution itself definitely expresses. It seems from a late decision that the supreme court does not regard State legislation in aid of the claimant as unconstitutional. Moore v. Illinois, 14 How. 13. (a) This act of 1793 has been suspended by the act of 1850, which dispenses entirely with the agency of State officers, and adds many facilities and securities for the reclaiming of fugitives. 9 Stat. at Large, 462; Jenkin's Case, 2 Am. Law Reg. 144; Norris v. Newton, 5 McLean, 92; Giltner v. Gorham, 4 McLean, 402; Miller v. McQuerry, 5 id. 469; Weimer v. Sloane, 6 id. 259; Sims's Case, 7 Cushing, 285; 5 Opinions of United States Attorneys-General, 254; United States v. Morris, 1 Curtis, C. C. 23; United States v. Stowell, 2 id. 153; 1 Blatchford, 635; 2 id. 559; United States v. Reed, 2 id. 435; In re George Kirk, 1 Parker Crim. Cas. 67. The act of 1850 has been declared unconstitutional in Wisconsin. In re Booth, 3 Wis. 1. It was pronounced constitutional in all its provisions in Ableman v. Booth, 21 How. 506. As to what amounts to harboring and concealing a fugitive slave under these acts, and what is sufficient notice that the person harbored is a slave, see Jones v. Van Zandt, 5 How. 225; Ray v. Donnell, 4 McLean, 504. (b) With respect to the right of transit with slaves, the obligations of comity do not about to be admitted into the Union, an attempt was made to prohibit slavery there, but without success. On this occasion, it was strenuously contended that Congress had not the power to prescribe such a condition of admission. In the result, however, the power seems to have been conceded; for the act expressly prohibits slavery in all the territory west of the Mississippi, and north of the latitude of 36° 30', except Missouri. (a) Free Colored Persons. (b) I will take this opportunity to say a word respecting free negroes. Their condition varies considerably in the different States. Some exclude them altogether. Others allow them nearly all the privileges of citizens. But in Ohio, the policy has been to discourage them as much as possible from coming here, without absolutely excluding them. In fact, the only embrace it. Story, Confl. Laws, § 96. It was denied in France: 13 Causes Célèbres, 492. Also in England: Somersett's Case, Lofft's Rep. 1; 20 Howell's State Trials, 1; Forbes v. Cochrane, 2 Barn. & Cres. 448; 1 Black. Com. note, 424; The Amedie, 1 Acton, 240; The St. Louis, 2 Dodson, 210; The Slave Grace, 2 laggard, 84. And in this country: People v. Lemmon, 5 Sandford, 681; 26 Barb. 270, affirmed by the Court of Appeals at the March term, 1860. But in the case of Sewall's Slaves, 3 Am. Jurist. 404, there was a dictum, and in Willard v. The People, 4 Scammon, 461, a decision affirming it. And see in this connection, 2 West. Law Jour. 279; Rankin v. Lydia, 2 A. K. Marshall, 467; 14 B. Monr. 358; Lunsford v. Coquillon, 14 Martin, 401; 8 Louisiana, 475; Thomas v. Generis, 16 id. 483; Graham v. Strader, 5 B. Monr. 173; Collins v. America, 9 id. 565; Anderson v. Poindexter, 6 Ohio State, 622. (a) By the act of May 30, 1854, organizing the territories of Kansas and Nebraska, this restriction, known as the Missouri compromise, was repealed. The power of Congress to frame a government for a territory has been usually referred to the clause of sect. 3, art. 4, of the constitution; namely, "The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property of the United States." It has also been regarded as the inevitable consequence of the right to acquire territory, and whatever its source, its possession until recently has been considered unquestionable. Sere v. Pitot, 6 Cranch, 336; American Insurance Co. v. Canter, 1 Peters, 542, 543; United States v. Gratiot, 14 id. 537; Cross v. Harrison, 16 How. 193, 194; 1 Kent, Com. 383; 2 Story, Const. § 1325. In the recent case of Scott v. Sanford, 19 How. 393, some members of the court, after deciding that it had no jurisdiction of the case, expressed opinions that Congress had no power to prohibit slavery in the territories; that this clause of the constitution applied only to territory owned or claimed by the United States at the time of its formation; that the prohibition of slavery in the act known as the Missouri compromise act was unconstitutional and void; and one judge even regarded the same prohibition in the ordinance for the government of the North-western territory, as re-enacted by Congress, to be unconstitutional. But upon a familiar principle, which rejects as authority the opinions of judges, not necessary to the decision of the case, these dicta of a portion of the court are not likely to be considered as of binding force. There is a critical examination of this case, and of the points decided, in the Boston Law Reporter for June, 1857. This article in the Law Reporter thus states the point decided by a majority of the court. "A negro held in slavery in one State, under the laws thereof, and taken by his master, for a temporary residence, into a State where slavery is prohibited by law, and thence into a territory acquired by treaty, where slavery is prohibited by act of Congress, and afterwards returning with his master into a slave State, and acquiring a residence there, is not such a citizen of that State as may sue there in the circuit court of the United States, if he be held by the highest court of that State after his return to be a slave." (b) Medway v. Natick, 7 Mass. 88; Gray v. Ohio, 4 Ohio, 353; Jeffries v. Ankeny, 11 Ohio, 372; Thacker v. Hawk, 11 Ohio, 376; Van Camp v. Incorp. Village of Logan, 9 Ohio St. 406; Anderson v. Millikin, ib. 568. The regulation of a school committee, requiring colored children to attend a separate school, was held to be in conformity with the constitution of Massachusetts. Roberts v. Boston, 5 Cush. 198. An act in Ohio to the same effect, where equal advantages were given to the colored and white children, was held not to conflict with the 14th amendment to the constitution of the United States. State v. McCann, 21 Ohio St. 198. provision in their favor is, that which punishes kidnapping them. The disabling provisions are generally confined to "blacks and mulattoes." A mulatto is a person begotten between a white and a black. Consequently, a person of any shade above half-black would not be within these disabilities. And our courts have manifested a disposition to construe these provisions strictly, in favor of liberty and equality. Some of them certainly savor of unneces sary severity. § 66. Power as to the Public Domain. (a) This has been already discussed under the four heads of acquisition of title; scheme of survey and sale; creation of territorial governments; and admission of new States into the Union. Nothing further, therefore, remains to be said. § 67. Power to protect the States. (b) The words are," the United States shall guarantee to every State in this Union a republican form of government, and shall protect each of them against invasion; and on application of the legislature, or of the executive when the legislature cannot be convened, against domestic violence." This language makes the general protection here guaranteed, not merely a matter of power, but of duty. It binds the whole to protect the parts. Some fears were entertained at the outset that a pretext would here be found for interfering in the concerns of the States, when there was no occasion. But all agreed that there might be occasions when federal interference might be desirable, and therefore the power ought to be conferred. The only question was, whether it had been sufficiently guarded. The clause points out three occasions of interference which may be viewed separately. First, as to the form of the State governments. So long as they continue "republican" there is no authority to interfere. This term comprehends such a variety of modifications as to leave the States the widest field for choice that can be desired. They are merely prevented from introducing a despotic, monarchic, aristocratic, or, in one word, anti-republican, form of government. When they shall attempt to do this, the general welfare will be threatened, and they ought to be prevented. But until they do so, there can be no interference with their form of government. Secondly, as to invasions. Here there can be no question. To invade a State is to invade the Union. If the State can protect itself, it is well; if not, it must need federal assistance. This power, therefore, can never do harm, but always good. Thirdly, as to domestic violence. Here there is more room for apprehension. (a) Ante, § 13, 14, 15. (b) The convention at first resolved to guarantee to each State a republican constitution and its existing laws. Mad. Pap. 861. This proposition was afterwards modified by striking out existing laws, and inserting protection against foreign and domestic violence-id. 1141. A distinct power to subdue a rebellion in any State, upon the application of its legislature, was negatived by a tie vote-id. 1349–51. The clause was then agreed to in its present shape-id. 1466-8; Martin v. Mott, 12 Wheaton, 29. See Luther v. Borden, 7 How. 1, a decision relating to the Rhode Island contest in 1841 and 1842. The cause being domestic, interference would be a matter of extreme delicacy. And on this account it is provided, that federal interference shall not take place until the State has requested it. This will of course happen only when there is actual need; consequently, there can be no danger from this quarter. On the whole, then, it would seem that this provision is as carefully guarded as it is important to the States. It makes the stronger, as it always should be, a protector of the weaker, without the power of becoming an oppressor. LECTURE X. INCIDENTAL POWERS. § 68. Their general Nature. (a) In the preceding lecture, I have discussed all the enumerated powers of the federal constitution, together with the corresponding prohibitions. To one who has never before thought upon the subject, it may appear strange that so few specifications should be sufficient to describe the extent of federal authority. But it is to be remembered that the specifications only describe the ends to be effected by the federal government. The means to be employed in effecting these ends are not enumerated, but constitute what are termed incidental powers. And here the question may be asked why these means were not also enumerated? Why was not the enumeration, once begun, rendered complete? Why was anything left to implication? I will endeavor to answer these questions. In the first place there was no necessity for carrying the enumeration further. It is a general principle of common sense, running through all agencies, that where authority is given to effect a particular end, it necessarily includes the authority to use the proper means, without any specifications to that effect. In other words, where a general power is given to do a thing, every particular power necessary for doing it is included, without being expressed. Now the general powers deemed necessary for effecting the national purposes for which the federal government was created, having been specifically enumerated, all the particular powers necessary to carry into effect these general powers, are, on the above principle, implied, without being named; for there is nothing peculiar in the nature of this constitution, to make it an exception to this otherwise universal rule of construction. The ninth and tenth amendments were never designed to produce this effect, as has been sometimes alleged. The ninth amendment declares that "the enumeration in this constitution of certain rights, shall not be construed to deny or disparage others retained (a) See 2 Story, Const. ch. xxiv. § 1906. |