CONDITION OF SLAVES UNDER THE LAW.

497 be made sensible that there was no appeal from his master; that his power was in no instance usurped; but was conferred by the laws of man at least, if not by the law of God. The danger would be altogether too great if "tribunals of justice should be called upon to graduate the punishment appropriate to every temper and every dereliction of menial duty." It therefore disclaimed the power of changing the relation in which master and slave stood to each other.

This decision was handed down at a time when the free soil party was in its infancy. Eight years before, Martin Van Buren had announced in his inaugural address, that he went into the presidential chair the “inflexible and uncompromising opponent to every attempt on the part of Congress to abolish slavery in the District of Columbia against the wishes of the slave-holding States, and also with the determination equally decided to resist the slightest interference with it in the States where it exists." The court was compelled to declare that so long as slavery existed, the dominion of the owner over the slave was "essential to the value of slaves as property; to the security of the master and of the public tranquillity; and as most effectually securing the protection and comfort of the slaves themselves." Thus none of the rights defined by Justice Washington as fundamental to the citizens of all free government could possibly be enjoyed by the slave.

1

This decision on the permanent and helpless condition of the slave in America was handed down during the early stages of that agitation in Tennessee, North Carolina and Pennsylvania, which culminated in them in the abrogation of the right of free men of color to vote, a right implied but not expressed in the constitutions of these States in the description of the voter as a person or inhabitant,

1 March 4, 1837; Richardson III, 318. See pp. 413-414, ante.

498

THE FUGITIVE SLAVE CLAUSE.

and not as was usual in the State constitutions, as a free white man. In pronouncing the first fugitive slave law constitutional, the Supreme Court of the United States2 gave a somewhat strange definition of the status of slavery. Mr. Justice Story delivered the opinion. By the general law of Nations, he said, no Nation was bound to recognize the state of slavery as to foreign slaves found within its territorial domains, when it was in opposition to its own. policy and institutions, in favor of the subjects of other Nations where slavery was recognized. Recognition was a matter of comity and not of right. "The state of slavery," said he, "is admitted to be a mere municipal regulation, founded upon and limited to the range of the territorial laws," from which consideration it followed, that if the Constitution had not contained this clause every non-slave holding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits and to have given them immunity and protection against the claims of their masters; a course which would have created the most bitter animosities and engendered perpetual strife between the different States. The clause, therefore, was of the last importance to the safety and security of the Southern States, and could not have been surrendered by them without endangering their whole property in slaves. It was accordingly adopted into the Constitution by the unanimous consent of the framers; a proof at once of its intrinsic and practical necessity. Thus the entire responsibility for the return of the fugitive slave rested upon the United States.

Mr. Justice McLean dissented from this opinion, holding that a State had the right to exercise its police power

1 Act of February 12, 1793; Statutes at Large, Vol. I, 302.

2 In Prigg vs. Commonwealth of Pennsylvania, 16 Peters, 539 (1842).

STATUS OF THE INDIAN TRIBES.

499

and to refuse to assist in returning a runaway slave, an opinion which the abolition party immediately utilized as a legal and constitutional basis for its doctrines. ChiefJustice Taney in dissenting from McLean's view, declared that it was obligatory upon the States to assist in delivering up the fugitive; thus anticipating the argument of Webster and other defenders of the Fugitive Slave act in the Compromise of 1850. The effect of this decision, and of that of the North Carolina court in 1829, and of similar decisions in other States, was in harmony with the laws of Congress and of the States and of the practice and prejudices of the country, and together with them wrought the complete exclusion of persons in slavery from any participation in the rights of citizens. Scarcely less complete was the exclusion of free persons of color. These could not serve in the army or navy of the United States, or in its civil service, or in the militia or the civil service of the States. They were a people without a country,1 ever in danger of wandering or being forced back into slavery.

Almost contemporaneous with the North Carolina decision of 1829, on the nature of the State, the Supreme Court defined the status of the Indian tribes.2 The Indian nations, said Marshall, had always been considered as distinct political communities, retaining their original natural rights as the undisputed possessors of the soil from time immemorial, with the single exception of that imposed by irresistible power which excluded them from intercourse with any other European potentate than the first discoverer of the coast of the particular region

1 The status of free persons of color is narrated at length in my Constitutional History of the American People, 1776-1850, Vol. I, Chap. xii.

2 In Worcester vs. The State of Georgia, 6 Peters, 515 (1823).

500

A WHITE MAN'S GOVERNMENT.

claimed: a restriction which European potentates imposed upon themselves as well as upon the Indians. The Constitution, by declaring that treaties made with them were a part of the supreme law of the land, had admitted their rank among the powers capable of making treaties. All intercourse between this Nation and the people of the United States was vested by our Constitution and laws in the National government. The Constitution excluded Indians from the basis of apportionment of representatives and direct taxation. Their civil and political rights depended upon whatever laws Congress might choose to enact. Though thus authoritatively defined to be independent Nations and distinct communities, the laws of the United States did not make provision for their naturalization; this privilege being limited to persons of the white race. Throughout the period in review, only one American Commonwealth, Wisconsin, made provision in its constitution for the inclusion of persons of Indian blood among the citizens of the State, and gave the right to vote to "civilized persons of Indian descent, not members of any tribe." 1 Throughout the period only eight States gave free persons of color the right to vote,2 and in four of these the right was of short duration.

Thus the government of the people of the United States, and that of nearly every commonwealth, was understood, throughout this period to be exclusively for the white race, and persons of Indian or African blood, excepting in a

1 1848, Article III, Section 1.

2 Massachusetts, 1780; New Hampshire, 1776, 1784, 1792; Vermont, 1776, 1786, 1791, 1793; New Jersey, 1776, but abrogated by act of Assembly November 16, 1807, and made permanent by the Constitution of 1844; New York, 1821-1846; Pennsylvania, 1776, 1790, but limited to free white persons by the Constitution of 1838; Tennessee, 1796, abrogated in 1834; North Carolina, 1776, abrogated in 1835.

POWER OF CONGRESS OVER COMMERCE.

501

few commonwealths, were legally incapable of becoming citizens of the United States. The legal presumption through all these years was, that every person of negro blood was a slave. The burden of proof that he was a free man ever rested upon him. All the departments of government, both State and National, the entire administration of the public business, excluded the African race from any participation in the fundamental rights of the citizens. The judgment of the majority of the American people seemed to be permanently made up that persons of color were entitled neither by the laws of nature, of society or of God to any participation in civil or political rights. It was against this strictly legal and constitutional conclusion that the Free Soil party and the Abolitionists protested. The natural and constitutional scope of the powers of Congress were examined by the court in 1824, when ChiefJustice Marshall handed one of the most important contributions to the science of representative government.1

The issue involved was the power of Congress to control commerce, and the authority of the State legislatures to enact laws affecting it. It was claimed by counsel that, prior to the formation of the Union, the States "were sovereign, completely independent and connected with each other only by a league." "This," said Marshall, "is true, but when these allied sovereignties converted their league into a government; when they converted their Congress or ambassadors, deputies to deliberate on their common concerns and to recommend measures of general utility, -into a legislature, empowered to enact laws on the most interesting subjects,-the whole character in which the States appeared underwent a change," the extent of which

1 In Gibbons vs. Ogden, 9 Wheaton, 1; see also Brown vs. Maryland, 12 Wheaton, 419 (1827); the License Cases, 5 Howard, 504 (1846); the Passenger Cases, 7 Howard, 283 (1848).