constitution, or law, of a State coming into existence in the same Territory, and taking its place. The principle is, that the constitution carrying slavery into the territory, the holding slaves there is a constitutional right which cannot be defeated by an act of Congress. Now, that being the case, can any other authority defeat it? Can a State do it? Can one State do by itself what all the States together in Congress cannot do? The inequality, degradation, insult and injury of being debarred from an equal use of a common property, is the gravamen of the complaint: now this degradation, insult, injury, and inequality, would be precisely the same if done by a State law, or a State constitution, as if done by an act of Congress. The damage would be the same, and the insult greater, because done by a single State, and a young one fresh from the territorial condition, and setting at defiance the rights of all the old slave States to which it might owe its existence. The case would cry equally for the interposition of the Supreme Court, and it would be a case in which the court would have a clear right to interpose. For the Constitution of the United States is supreme over State constitutions, State laws, and State judiciaries. It overrides them all wherever it goes;* and going into the new State with the same right and duty to protect persons and property in the enjoyment of a common right with which it had entered the territory, the same remedy would require to be given for the same wrong. And there would be no taking position upon State rights; for no State has any right to do any thing contrary to the Constitution. The argument of the Court proves too much;

another jurisdiction, where no municipal laws on the subject of slavery exist? 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 thore 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 ?"

* This Constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, any thing in the constitution or laws of any State to the contrary notwithstanding. [Cons., Art. 6.]

and, pushed to its legitimate conclusions, would invalidate State constitutions and laws as readily as it does acts of Congress, there being no difference in the right to go and to stay in the State as well as the Territory, as long as there remained in it any soil acquired by the common blood, and the common treasure of the whole.

But there is practice as well as argument on this doctrine of carrying slaves into territories, and having them protected there by the Constitution. We have had some slave territories-Missouri, Arkansas, Florida,―into which that property was carried. Was it done under the Constitution? No! But under the territorial law, sanctioned, not by the Constitution, but by Congress, and governed after it got there by the territorial law. No one carried the State law with him. He left that behind, and took what he found in the Territory; and if he had found no law there, the slaves would have been free, maugre the Constitution, which, extended over territories without laws to apply it, would be a cloud without rain, as even in the States for which it was made, and in which it recognizes slavery and the rights of the owner. No right can be exercised under it, not even reclaiming a fugitive from service, without an act of Congress.

I only occupy myself with the political part of the Court's opinion—that part of it which is intended to act on the power of Congress; and to set forth this part in its clearest light, and to separate it from the personal part which acts on the freedom of Scott and his family. I here present these political decisions, (as I deem them to be,) from the official report of the case, as I find them condensed in the Reporter's synoptical view, prefixed to the report. That synopsis classes the different branches of the decision under five divisions, of which only two—the third and the fourth-claim my attention. They are as follow:

III.

“The clause in the Constitution authorizing Congress to make all needful rules and regulations for the government of the territory and other property of the United States, applies only to territory within the chartered limits of some one of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of the States, in the treaty of peace. It does not apply to territory acquired by the present Federal Government, by treaty or conquest, from a foreign nation.

"The United States, under the present Constitution, cannot acquire

territory to be held as a colony,* to be governed at its will and pleasure. But it may acquire territory which, at the time, has not a population that fits it to become a State, and may govern it as a Territory until it has a population which, in the judgment of Congress, entitles it to be admitted as a State of the Union.

"During the time it remains a Territory, Congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United States-and may establish a Territorial Government-and the form of this local Government must be regulated by the discretion of Congress-but with powers not exceeding those which Congress itself, by the Constitution, is authorized to exercise over citizens of the United States, in respect to their rights of persons or rights of property.

IV.

"The territory thus acquired, is acquired by the people of the United States for their common and equal benefit, through their agent and trustee, the Federal Government. Congress can exercise no power over the rights of persons or property of a citizen in the Territory which is prohibited by the Constitution. The Government and the citizen, when

*"Colony."—It is no part of the design of this Examination to remark upon any thing in the Court's decision but the two points mentioned the abrogation of the Compromise Act, and the extension of the Constitution to territories; but the phrase "colony," and the doctrine delivered in relation to that species of dependency, calls for a remark which, as it cannot go into the body of the work, must find a place in a note. The meaning of it is too well fixed to admit of ambiguous sense, even in a popular harangue, much less in a judicial decision. It always signifies a body of cultivators transplanted by the government to a distant possession, and governed and protected there by the mother country, of which it is to be always the dependentnever the equal. The term has never been applied to our territories, and cannot be without a total change in their nature. Distance, governmental transplantation, perpetual inferiority, is their inexorable characteristic. As such, the question of colonies is purely and simply a political question, for the determination of the political power; and as such was determined some fifty odd years ago by our Government. The determination was, that the United States would have no colony which required a navy to guard it, and to keep open communication with it. And that determination, by its import and express terms, admitted Cuba as an exception-that island being near enough to our coast to be safely reached without the convoy of a fleet, and strong enough in its natural and artificial defences to be protected by land forces. But while this exception of Cuba was made, all designs upon it inconsistent with fair purchase, or honorable conquest in just war, were sternly repudiated. The doctrine of the old school was that, geographically, Cuba belonged to the New World, and to the North American part of it, and to the United States as the chief power of North America; and politically, to Spain: and that, while Spain declined to sell, and gave us no just cause of war, she was to be undisturbed in the possession of that island

ever the Territory is open to settlement, both enter it with their respective rights defined and limited by the Constitution.

"Congress have no right to prohibit the citizens of any particular State or States from taking up their home there, while it permits citizens of other States to do so. Nor has it a right to give privileges to one class of citizens which it refuses to another. The Territory is acquired for their equal and common benefit—and if open to any, it must be open to all upon equal and the same terms.

"Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognizes as property.

"The Constitution of the United States recognizes slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.

"The act of Congress, therefore, prohibiting a citizen of the United States from taking with him his slaves when he removes to the Territory in question to reside, is an exercise of authority over private property which is not warranted by the Constitution-and the removal of the plaintiff, by his owner, to that Territory, gave him no title to freedom."

These decisions upon their face show themselves to be political, and tried by the test of enforcement, they are proved to be so. The Supreme Court cannot enforce these decisions; and that is the test of its jurisdiction. Where it cannot enforce, it cannot try. The Court is an authoritative body, acting with authority, and having power to enforce its decisions wherever it has jurisdiction. It can issue its command-(mandamus, we command)and has a machinery to execute it-marshals, jails, fines, imprisonment. None of this machinery can be employed upon Congress and the people. Suasion is the only operative agent upon them; and this agent, either moral or political, is not the weapon of the Court. The pulpit and the forum persuade: a court commands. It, therefore, acted, on these points, without jurisdiction; that is to say, without right; and, what is more,

as much so as in the island of Cadiz. But no other power was to be allowed to get it from Spain, either by purchase or conquest. If it was to be sold, the United States had the pre-emption right of purchase: if to be conquered, we the conqueror. But all this open and above board-no pretexted wars, no false claims, no fictitious quarrels, no annoying, no bullying, no forced sale.-Jefferson's Letters.

(as will be seen in the course of this examination,) did what the political power refused to do when moved thereto in 1847 and '48. The extension of the Constitution to Territories was then attempted and repulsed. To give a right to the Supreme Court to try the question of African slavery in free Territories, was then attempted, and denied.* To abrogate the Missouri Compromise, though the act was then denounced, was not attempted -Mr. Calhoun himself saying it was "not to be attempted "assigning as a reason that the attempt would disturb the Union; his real reason being, that the party which did it would stand responsible for what might (in consequence) happen to the Union: for he was a man of head, and of system, and in all these movements constantly affected the defensive.

I conclude this introductory note with recurring to the great fundamental error of the Court, (father to all the political errors,) that of assuming the extension of the Constitution to the Territories. I call it assuming, for it seems to be a naked assumption without a reason to support it, or a leg to stand upon -condemned by the Constitution itself, and the whole history of its formation, and administration. Who were the parties to

* It was in 1848, in one of the abortive bills reported by a select committee for the government of the new territories, and in which the slave was to have the right of suing his master for his freedom, with an appeal to the Supreme Court. The readiness with which the debate ran into the personal composition of the Court, and became political and geographical, and distrustful of the judges, as the speaker and the judge should be on opposite sides of Mason & Dixon's line, shows the extreme delicacy of carrying such questions to the Court. Thus: "Mr. Corwin asserted his belief, that if Senators from the South believed that in an appeal to the Supreme Court, in cases under this bill, the decision would be against them, they would never vote for this bill. So, if the Senator from Vermont (Mr. Phelps) thought the decision would be against him, he would never vote for it." "Mr. Foote feared that the decision of the Supreme Court, as now constituted, would be against the South." "Mr. Hale professed to have no confidence in the Supreme Court, as now constituted." แ "Mr. Reverdy Johnson believed in the existence of the power in Congress to pass a law to prohibit slavery in territories, and if such a law was presented to the Supreme Court for a decision on its constitutionality, it would be in favor of the law. As a judicial question, the decision would be against the protection of the South." Mr. Badger, of North Carolina, "Had a respect for the Supreme Court, but he was not willing to leave the decision of the question to a court, so large a portion of which was opposed to slavery." Mr. Bell, of Tennessee, opposed the bill on the ground, "that the Court was the weakest of the three co-ordinate branches of the Government-too weak to command obedience, or to settle such questions; and he drew the inference that a decision of it before a tribunal so feeble might break down the Court, while it failed to satisfy the public mind.-Mr. Bell on Oregon.