sissippi which relates to the introduction of slaves as merchandise or for sale?"

The court held that the question was not involved in this case (ib. 504, 508). But Justices Story, Thompson, Wayne, and McKinley, are said (ib. 510) to have "concurred with the majority" in holding that the power to regulate commerce does not give power to Congress in reference to this subject.

Judge McLean, in a separate Opinion, held that Congress had no power in the matter, and derived this conclusion from the proposition that slaves are persons, and not property, in view of the Constitution and laws of the United States."

Chief Justice Taney delivered a separate Opinion, in which he held that the power was exclusively with the States, but expressly declared that he did not think proper to argue the question.'

Judge Baldwin delivered a separate Opinion, in which he dissented from the Opinion of the court, and held that the power was in Congress.' He derived this conclusion from the

1Ante, p. 147, n. 2.

2 McLean, J., 15 Peters, 506:-"Can the transfer and sale of slaves from one State to another be regulated by Congress under the commercial power?

"If a State may admit or prohibit slaves at its discretion, this power must be in the State and not in Congress. The Constitution seems to recognize the power to be in the States. The importation of certain persons-meaning slaves-which was not to be prohibited before 1808, was limited to such States then existing as shall think proper to admit them. Some of the States, at that time, prohibited the admission of slaves, and their right to do so was as strongly implied by this provision as the right of other States that admitted them.

"The Constitution treats slaves as persons." See the remainder of the passage cited ante, p. 571, note 2.

3

Ib., 508, Taney, Ch. J.: " I had not intended to express an opinion upon the question raised in the argument in relation to the power of Congress to regulate the traffic in slaves between the different States, because the Court have come to the conclusion, in which I concur, that the point is not involved in the case before us. But as my Brother McLean has stated his opinion upon it, I am not willing, by remaining silent, to leave any doubt as to mine.

In my judgment, the power over this subject is exclusively with the several States; and each of them has a right to decide for itself, whether it will or will not allow persons of this description to be brought within its limits, from another State, either for sale or for any other purpose; and, also, to prescribe the manner and mode in which they may be introduced, and to determine their condition and treatment within their respective territories; and the action of the several States upon this subject cannot be controlled by Congress, either by virtue of its power to regulate commerce, or by virtue of any other power conferred by the Constitution of the United States. I do not, however, mean to argue this question; and I state my opinion upon it on account of the interest which a large portion of the Union naturally feel in this matter, and from an apprehension that my silence,

proposition that slaves, in view of the Constitution and laws of the United States, are property, and not persons."

Although Judge Baldwin's views do not appear to have been supported on this occasion by any other member of the court, his language is deserving of especial notice as the juris

when another member of the court has delivered his opinion, might be miscon strued.

"Another question of constitutional law has also been brought into discussion; that is to say, whether the grant of power to the general Government, to regulate commerce, does not carry with it an implied prohibition to the States to make any regulations upon the subject, even although they should be altogether consistent with those made by Congress.

"I decline expressing any opinion upon this question, because it is one step further out of the case really before us; and there is nothing in the character of the point that seems to require a voluntary declaration of opinion by the members of the Court."

1 15 Peters, 513, immediately after the passage cited ante, p. 571, note 2, Judge Baldwin says:

"It was a principle of the Revolution and the practical construction of the Declaration of Independence, that necessity or expediency' justified the refusal of liberty in certain circumstances to persons of a particular color,' and that those to whom their services and labor were due were their owners.' 1 Laws U. S., 24, 25" The judge then refers to the provisions respecting "negroes or other property," in the first treaty of peace with Great Britain (ib. 198, 204), and to the words, slaves or other private property," in the treaty of Ghent.

The judge then says:-" At the adoption of the Constitution, slaves were as much the subjects and articles of commerce with foreign nations,' and among the several States, as any other species of merchandise; they were property for all purposes and to all intents; they were bought and sold as chattels," &c. Then, referring to the limitation against prohibition of the importation of slaves from abroad before 1808, the judge, arguing that the power to abolish the foreign slave trade must be incidental to the power of legislation over commerce with foreign nations, intimates that it necessarily follows that slaves must be regarded as property in order to justify the legislative prohibition of the African slave trade, and goes on to say:-"Slaves then being articles of commerce with foreign nations up to 1808, and until their importation was prohibited by Congress, they were also articles of commerce among the several States, which recognized them as property capable of being [515] transferred from hand to hand as chattels Whether they should be so held or not, or what should be the extent of the right of property in the owner of a slave, depended on the law of each State; that was and is a subject on which no power is granted by the Constitution to Congress; consequently none can be exercised, directly or indirectly. It is a matter of internal police, over which the States have reserved the entire control; they, and they alone, can declare what is property capable of ownership absolute or quali fied; they may continue or abolish slavery at their pleasure, as was done before and has been done since the Constitution, which leaves this subject untouched and intangible except by the States.

"As each State has plenary power to legislate on this subject, its laws are the test of what is property; if they recognize slaves as the property of those who hold them, they become the subjects of commerce between the States which so recognize them, and the traffic in them may be regulated by Congress, as the traffic in other articles, but no farther. Being property by the law of any State, the owners are protected from any violations of the rights of property by Congress, under the fifth Amendment of the Constitution; these rights do not consist merely in ownership; the right of disposing of property of all kinds is incident to

tical precursor of the doctrines afterwards judicially proclaimed in Dred Scott's case.

This portion of Judge Baldwin's Opinion might have been cited in a former chapter as an extra-judicial dictum bearing on the question of the right of the citizens of slaveholding

it, which Congress cannot touch. The mode of disposition is regulated by the State or common law, and but for the 1st clause, the 2d section of the 4th Article of the Constitution of the United States, a State might authorize its own citizens to deal in slaves and prohibit it to all others. But that clause secures to the citizens of all the States all privileges and immunities of citizens' of any other State, whereby any traffic in slaves or other property, which is lawful to the citizens or settlers of Mississippi, with each other, is equally protected when carried on between them and the citizens of Virginia. Hence it is apparent that no State can control this traffic, so long as it may be carried on by its own citizens, within its own limits; as part of its purely internal commerce, any State may regulate it according to its own policy; but when such regulation purports to extend to other States or their citizens, it is limited by the Constitution putting the citizens of all on the same footing as their own. It follows, likewise, that any power [516] of Congress over the subject is, as has been well expressed by one of the plaintiff's counsel, conservative in its character, for the purpose of protecting the property of the citizens of the United States, which is a lawful subject of commerce among the States, from any State law which affects to prohibit its transmission for sale from one State to another, through a third or more States. If the owner of

slaves in Maryland, in transporting them to Kentucky or Missouri, should pass through Pennsylvania or Ohio, no law of either State could take away or affect his right of property; nor, if passing from one State to another, accident or distress should compel him to touch at any place within a State where slavery did not exist. Such transit of property, whether of slaves or bales of goods, is lawful commerce among the several States, which none can prohibit or regulate, which the Constitution protects and Congress may and ought to preserve from violation. Any reasoning or principle which would authorize any State to interfere with such transit of a slave would equally apply to a bale of cotton or cotton goods; and thus leave the whole commercial intercourse between the States liable to interruption or extinction by State laws or constitutions. Where no object of police is discernable in a State law or constitution, nor any rule of policy other than that which gives to its own citizens a 'privilege' which is denied to citizens of other States, it is wholly different. The direct tendency of all such laws is partial, anti-national, subversive of the harmony which should exist among the States, as well as inconsistent with the most [517] sacred principles of the Constitution, which, on this subject, have prevailed through all time, in and among the colonies and States, and will be found embodied in the second resolution of the Virginia Legislature, in 1785, 1 Laws of U. S., 53. For these reasons, my opinion is, that had the contract in question been invalid by the constitution of Mississippi, it would be valid by the Constitution of the United States. These reasons are drawn from those principles on which alone this government must be sustained; the leading one of which is that, wherever slavery exists by the laws of a State, slaves are property in every constitutional sense, and for every purpose, whether as subjects of taxation, as the basis of representation, as articles of commerce, or fugitives from service. To consider them as persons merely, and not property, is, in my settled opinion, the first step towards a state of things to be avoided only by a firm adherence to the fundamental principles of the State and federal Governments, in relation to this species of property. If the first step taken is a mistaken one, the successive ones will be fatal to the whole system. I have taken my stand on the only position which, in my judgment is impregnable, and feel confident in its strength, however it may be assailed in public opinion here or elsewhere."

States to hold slaves during temporary sojourn within the limits of a State in which the status of slavery is not recognized by the local law. It will be noticed that Judge Baldwin first made the law of some one State the standard of whatever may be recognized in that State as the object of commerce under the Constitution, and then made the law of the State of the citizen's domicil the standard of those privileges and immunities of citizenship to which, under the provision in the fourth Article, he is entitled in every other State.

The question, of the power of Congress in respect to the domestic slave trade, will not here be examined on principle; except by observing that, so far as its answer depends on the question, whether slaves are or are not property, it will be consistent with the conclusions arrived at in discussing other questions in this work to say that, in their transfer from one State to another, slaves must, in view of the national law, always be regarded as persons. Whether the transportation of persons from one State to another can be regarded as a subject of that commerce between the States which, by the Constitution, is within the legislative power of Congress, is a question which will not be here examined.'

965. It has been already remarked that the claim of an owner, being a citizen of some State, to slave property in some other State in which he appears as a domestic alien, may be urged, first, as supported by the guarantee to the citizens of each State, in the first paragraph of the second section of the fourth Article, of the privileges of citizens in the several States; or, second, as a special case, supported by the fugitive-slave provision in the third paragraph of the same section. To complete the examination of the various grounds on which such a claim has been urged, it remains to examine, thirdly, how far the same be supported by that private international law which, in each State, is identified in authority with the local law, the effect of which on conditions of freedom and its contraries is considered in this chapter.

1 Ante, § 671.

* On this question, see the various judicial opinions in The Passenger Cases, 7 Howard, 283-573, and the note ante, p. 340.

This law may be in part derived from the positive legislative enactment of the State. The State statutes which may affect the international recognition of slavery, or of rights of ownership in respect to slaves, in the several States, have been given in the abstracts of State statutes. It remains only to consider how far the claim above spoken of may be supported by private international law, as ordinarily received, having in each State the character of customary or unwritten law.'

On the supposition that the case of fugitive slaves is to be determined exclusively by the constitutional provision and the laws of Congress, the claim above spoken of is only to be considered as occurring when slaves may have been brought, with their master's consent, from the State by whose laws they had been held to service, into some other State.

On the supposition that the several States may be distinguished as slaveholding or non-slaveholding, and that in each of the slaveholding States the owner domiciled in some other slaveholding State may, by the customary international law, remove the slave whom he has brought with him voluntarily, or without any overruling necessity, for temporary stay or sojourn, the claim above spoken of is only to be considered as occurring when slaves have been brought by their master's consent from some State by whose laws they had been held to service, into some non-slaveholding State.

The authorities bearing on this question cannot be here given fully and in proper order of time, or critically examined. But it may be noticed, as a consequence of the fact that the law which in any one State is to determine the question when it arises depends solely on the several will of such State, that the decisions of the courts of the non-slaveholding States are those from which only the general rule can be derived.'

The cases bearing most directly on this question have already been cited in considering whether this claim of an owner, being a citizen of a slaveholding State, is supported by any provision in the fourth Article of the Constitution.

'See the statement, ante, § 671.

2

It

* Dicta of courts of slaveholding States on this subject, e. g., in Rankin v. Lydia,

2 A. K. Marshall, 477, cannot be considered, however positive or unanimous. See, as supporting the claim, the case of Sewall's slaves, 3 Am. Jur. 404, and VOL. II.-49