&c. 4. "No court of this Territory shall have jurisdiction nor take cognizance of any cause for the correction that masters may give their servants for neglect of their duties as servants, for they are considered as domestic servants to their masters, and they should correct their neglect and faults; for as soldiers are punished by their chiefs, without the intervention of the civil authority, by reason of the salary they enjoy, an equal right should be granted to those persons who pay their money to be served in the protection of their property. Provided, that such correction shall not be inflicted in a cruel manner, with clubs or stripes."

- Another act is reported to have been enacted, entitled An act to provide for the protection of property in slaves, containing, in thirty sections, the principal enactments, for the maintenance of the rights of the owner and the protection of the community, which are found in the Codes of the slaveholding States. There is, however, no clause declaring who shall be slaves, or that slavery or any kind of servitude shall be lawful. Sec. 1. Declares the unlawful killing of a slave or other offence on his person punishable as in case of a free white. 2-5. Against stealing slaves and aiding them to escape, forging passes, &c. 6. Against exciting insurrection, &c. .7. Against furnishing arms. 8. Against trading with slaves. 9. Against gaming with slaves. 10-15. Proceedings against runaway slaves. 16. Punishment of owner for not properly providing for slave. 17. Trial of slave for felony. 18. Punishment of owner for cruel treatment. 19. Against allowing slaves to go at large, &c. 20. Punishment of disorderly, insolent slaves. 21. Punishment for misdemeanor, by branding or stripes. 22. "No slave, free negro, or mulatto, shall be permitted to give evidence in any court against a free white person, but against each other they shall be competent witnesses." 23. Marriages between white persons and slaves, or free negroes and mulattoes, declared void, and the white party declared punishable. 24. Negro, &c., for rape, or the attempt to commit, shall suf fer death. 25. "The emancipation of slaves within this Territory is totally prohibited." 26. Against slaves leaving the master's premises at night. 27. Proceedings in claim for pos

session of slaves. 28. Fine for holding as slave any negro, &c., entitled to freedom. 29, 30. Explanatory of the act.'

$578. LEGISLATION OF UTAH TERRITORY.

The portion of country included within this Territory had been with the dominion of Mexico. But the laws of Mexico have never been taken to have had territorial extent therein. It may be taken to have been without any local law until permanent settlements were made there by American citizens. Until some system of jurisprudence should have been declared to prevail as the general law of the land, the condition of persons would have been determined by those principles which take effect either as international or as internal private law, as the persons to whom they are applied may be regarded as domiciled or as temporary inhabitants. The reasoning which has herein already been presented as sustaining a condition of involuntary servitude in Nebraska and Kansas Territories"

'I have not been able to find any authentic publication of these acts of 1859, and know of them only from newspaper reports. A bill to disapprove and declare null and void all territorial acts or parts of acts heretofore passed by the Legislative Assembly of New Mexico which establish, protect, or legalize involuntary servitude, or slavery, within said Territory, except as a punishment for crime, upon due conviction, passed the House of Representatives, May 10, 1860.

3

Ante, p. 155, note 2.

Ante, pp. 180-185:-To the reasoning which, in the place referred to, has been stated as maintaining slavery in those Territories in which no local law has been previously recognized, the reader may think the objection will apply that it proves too much; that it requires that any right or obligation which has existed under the law of another forum be recognized, even though the relation to which it is incident be immoral, injurious to society, &c. The answer to this is,

First. The supposition of the possible existence of such relations is excluded in the argument by that principle which, in the first chapter of this work, is affirmed as an axiomatic rule in the judicial discrimination of unwritten law, viz.: that the judge must recognize the jural character of the law of any civilized community, and, in his function, accept every relation maintained by such law as jural, or rightful, in and for the circumstances in which it is applied (ante, § 33), and recognize its continuance, except as it may be limited by the international principle stated in the argument above referred to, not allowing or disallowing it, according to his individual ethical judgment; and further, that if the supposition be admissible, the conclusion must, nevertheless, be accepted, and regarded as an imperfection incident to jurisprudence, as of human origin; which can only be remedied by legislation, which again is liable to imperfection.

Secondly. The consequence anticipated does not follow-because, though there be no existing local law which, by the universal attribution of a right or obligation inconsistent with the supposed immoral or injurious relation, would prevent its judicial recognition, yet the judge is bound to recognize a universal jurisprudence, and rights and obligations may, by some of the rules which have this char

would have been equally applicable to sustain it in this Territory.

It would seem that persons would be bond or free in such Territory, according to their status under the law of the place of their former domicil.

1849, March 18. A convention of the inhabitants adopted a Constitution for the State of Deseret, to be in force "until the Congress of the United States shall otherwise provide for the government of the Territory hereinafter named and described, by admitting us into the Union," and proceeds to declare it under the form, "We the people." This Constitution of "the State of Deseret" is printed with the acts, &c., of the Assembly of the Territory of Utah,' printed, Salt Lake City,

acter, be attributed to all natural persons, so as to prevent the recognition of the rights and obligations incident to the supposed relation. Thus a contract for prostitution, a contract to associate for robbery, &c., if legalized by the law of another forum, would be contrary to this universal jurisprudence as it is known from the juridical action of the United States and of those nations from which their jurisprudence is derived. It is here that Christianity or the rules of Christian ethics may be recognized as law; not because the judge may be one who connects them with a divine inspiration, but because they are to a certain extent (and to that extent only can a court apply them as law) identified with the jurisprudence of the civilized nations of Europe and America, gentes moratiores (vol. I. pp. 33, 172). Thus it may be held that, as Christianity defines marriage as a relation of one man and one woman to each other individually and exclusively, the universal jurisprudence of these nations attributes to every man and every woman who has entered into this relation a right and obligation incompatible with polygamy or polyandry; and that, though a cohabitation of one man with more than one woman, or of one woman with more than one man, should be lawful by the law of some one forum, it could not be recognized in another, even though it be a Territory which has not had any local law.

The acrimony by which the discussion of the question of slavery in the Territories is characterized is mainly ascribable to the necessity of inquiring as to the existence of any rule having the character of universal jurisprudence, and the occasion thereby offered to compare the rights and obligations incident to slavery with the requirements of Christian ethics. Those who insist that the law of some particular State or States for personal condition should, in the Territories, be received as universal jurisprudence, are constantly found to derive that law from the "law of nature," or from revelation. This is illustrated by those who affirm that persons held as slaves in one of the States are to be regarded everywhere as property, or, at least, as persons of a race condemned by nature and revelation to perpetual servitude, and, equally so, by those who claim that slavery or slave-owning is a crime by natural law and Christian doctrine; each thereby ascribing the taint of heresy to the other.

Act of Congress 1850, Sept. 9. An act to establish a territorial government for Utah. IX. Stat. 453. Sec. 1. Describing boundaries, "and, when admitted as a State, the said Territory or any portion of the same shall be received into the Union with or without slavery, as their Constitution may prescribe at the time of their admission," and declaring power of Congress to divide the Territory at any time. 2-16. Declaring how executive, legislative, and judicial power shall be vested. 5.

1855. Art. V. sec. 10, limits suffrage to whites. VI. sec. 1. Militia service so limited. VIII. A declaration of rights. Sec. 1. "In republican governments all men should be born equally free and independent, and possess certain natural," &c. 3. Declares freedom of worship and forbids any State ecclesiastical establishment.' There is no reference to slavery or to blacks.

1852.-An act in relation to service. Laws of 1855, ch. 17. Sec. 1. "That any persons coming into this Territory, and

Limits the elective franchise to whites. 6. "That the legislative power of said Territory shall extend to all rightful subjects of legislation consistent with the Constitution of the United States and the provisions of this act;" contains restrictions as to its affecting the landed property of the United States; and provides that "all the laws passed by the Legislative Assembly and governor shall be submitted to the Congress of the United States, and, if disapproved, shall be null and of no effect." 9. Allowing appeals to the Supreme Court of the United States, and provides for cases of title to slaves and of possession of personal freedom. 17. Extends the Constitution and laws of the United States over the Territory so far as applicable.

By Territorial Laws of 1855, ch. 22, § 17, " All criminal prosecutions shall be commenced and carried on in the name of the people of the United States in the Territory of Utah.?"

The territorial Legislature, Oct. 4, 1851, passed a resolution legalizing the ordinances of the provisional government of the State of Deseret, passed between Jan. 15, 1850, and Feb. 12, 1851. These relate principally to the organization of counties and corporations. Among them is An ordinance incorporating the Church of Jesus Christ of Latter-Day Saints (Rev. L. of 1855, p. 103). Sec. 1. Incorporates all the inhabitants of the State of Deseret, who are known as the church of the above name, into one body, with unlimited power of holding real and personal estate, and to "establish order and regulate worship." 2. Provides for the election of one trustee and twelve assistant trustees, with power to hold all the property and manage all affairs of this church. Sec. 3 is as follows:-" And be it further ordained, that, as said church holds the constitutional and original right, in common with all civil and religious communities, to worship God according to the dictates of conscience;' to reverence communion agreeably to the principles of truth, and to solemnize marriage compatible with the revelations of Jesus Christ; for the security and full enjoyment of all blessings and privileges embodied in the religion of Jesus Christ free to all;-it is also declared, that said church does and shall possess and enjoy continually the power and authority, in and of itself, to originate, make, pass, and establish rules, regulations, ordinances, laws, customs, and criterions for the good order, safety, government, conveniences, comfort, and control of said church, and for the punishment or forgiveness of all offences, relative to fellowship, according to church covenants; that the pursuit of bliss, and the enjoyment of life, in every capacity of public association and domestic happiness, temporal expansion, or spiritual increase upon the earth, may not legally be questioned: provided, however, that each and every act or practice so established, or adopted for law, or custom, shall relate to solemnities, sacraments, ceremonies, consecrations, endowments, tithings, marriages, fellowship, or the religious duties of man to his Maker; inasmuch as the doctrines, principles, practices, or performances support virtue, and increase morality, and are not inconsistent with or repugnant to the Constitution of the United States, or of this State, and are founded in the revelations of the Lord."

bringing with them servants justly bound to them, arising from special contract or otherwise, said person or persons shall be entitled to such service or labor by the laws of this Territory: Provided, that he shall file in the office of the probate court written and satisfactory evidence that such service or labor is due." 2. "That the probate court shall receive as evidence any contract properly attested in writing, or any wellproved agreement, wherein the party or parties serving have received or are to receive a reasonable compensation for his, her, or their services: Provided, that no contract shall bind the heirs of the servant or servants for a longer period than will satisfy the debt due his, her, or their master or masters." 3. "That any person conveying a servant or servants, and his, her, or their children, from any part of the United States or other country, and shall place in the office of the probate court the certificate of any court of record, under seal, properly attested, that he, she, or they are entitled lawfully to the service of such servant or servants, and his, her, or their children, the probate justice shall record the same, and the master or mistress, his, her, or their heirs, shall be entitled to the services of the said servant or servants, unless forfeited as hereinafter provided, if it shall appear that such servant or servants came into the Territory of their own free will and choice." 4. That if any master or mistress have sexual intercourse with their servants "of the African race," their claim shall be forfeited to the Commonwealth; also punished by fine and imprisonment. 5. Duties towards servants; of servants towards masters. 6. Master may punish servants; shall forfeit them when guilty of cruelty or abuse. 7, 8. Transfer of servants to be made only before probate court. 9. Servants to be sent to school.

A preamble and an act for the further relief of Indian slaves and prisoners. Laws of 1855, c. 24. Recites the peculiar situation of the territorial government in Indian Territory; that "the laws of the United States in relation to intercourse with Indians are designed for and only applicable to Territories and countries under the sole and exclusive rule and jurisdiction of the United States;" that "from time immemorial the practice of purchasing Indian women and children, of the Utah tribe of