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ently of the doctrine that slaves are property recognized by the Constitution or by a national common law, the relation between master and slave coming to the Nebraska or Kansas Territory from a slaveholding State should have been judicially recognized in those Territories.' Whether it might not thereafter have been annulled by the legislative authority, either of Congress or the territorial government, is a distinct inquiry, which has herein been sufficiently considered already."

There are, however, many jurists who would say, that a "natural law" should here be recognized, declaring each person to be free who is not placed under the control of another by some positive law, meaning a law historically shown to exist, either by judicial decisions or by positive enactment, having before had recognition within the forum of jurisdiction—relying, perhaps, on Lord Mansfield's reasoning in Somerset's case. But, according to the views stated in the first two chapters of this work, these international principles do, of themselves, constitute that "positive law" which is here referred to; and this view is fully illustrated in the historical part of the first volume."

1 In Sec. 9 of the act of Congress organizing these Territories it is provided, that appeals shall lie from the Supreme Court of the Territory to the Supreme Court of the United States, where the value in controversy exceeds one thousand dollars, "except only that in all cases involving title to slaves, the said writs of error or appeals shall be allowed and decided by the said Supreme Court, without regard to the value of the matter, property, or title in controversy; and except also that a writ of error or appeal shall also be allowed to the Supreme Court of the United States, from the decision of the said Supreme Court created by this act, or of any judge thereof, or of the district courts created by this act, or of any judge thereof, upon any writ of habeas corpus involving the question of personal freedom. Provided that nothing herein contained shall be construed to apply to or affect the provisions of" the acts of Congress of 1793 and 1850, respecting fugitives from justice and from labor. Sec. 27 contains similar provisions for Kansas.

In ch. XVI.

In Observations on Senator Douglas' views of Popular Sovereignty, as expressed in Harper's Magazine for Sept., 1859, by Judge Black, second ed., in stating the legal basis of slavery in the Territories, p. 4, the writer gives this as his first proposition: "1. It is an axiomatic principle of public law, that a right of property, a private relation, condition, or status, lawfully existing in one State or country, is not changed by the mere removal of the parties to another country, unless the law of that other country be in direct conflict with it. For instance: a marriage legally solemnized in France is binding in America; children born in Germany are legitimate here if they are legitimate there; and a merchant who buys goods in New York, according to the laws of that State, may carry them to Illinois and hold them there under his contract. It is precisely so with the status of a negro carried from one part of the United States to another; the question of his freedom or servitude depends on the law of the place where he came from, and depends on that alone, if there be no conflicting law at the place to which he goes

1857.-In the Code of procedure of this year, Sess. L. p. 107, c. 33, §1. "But an Indian, a negro, or mulatto, or black person shall not be allowed to give testimony in any cause."

1858. A criminal Code, enacted by the territorial Legis lature, ch. 1, sec. 53, defines kidnapping. 54. Declares the forcible carrying out of the Territory, "without having established a claim according to the laws of the United States," to be kidnapping, and declares the punishment. 55. Declares the punishment for enticing colored people, with a purpose to sell as slaves. Sess. L. p. 49.

1860.-A bill prohibiting slavery in the Territory is reported to have been enacted by the local assembly.

$572. LEGISLATION OF THE STATE OF KANSAS.

1855, c. 48 of Statutes enacted by the first territorial Legislature, in the time of Governor Reeder, which met at the Shawnee Manual-Labor School, after having passed, by two thirds, an act to remove thither the seat of government,' Crimes and punishments. Sec. 31. Punishment of rape when committed by a negro or mulatto. 32. Punishment of white person aiding in such rape. 40-43. Punishment of kidnapping, &c., "any free person, or persons entitled to freedom."

c. 74. An act to enable persons held in slavery to sue for their

or is taken. The Federal Constitution therefore recognizes slavery as a legal condition wherever the local governments have chosen to let it stand unabolished, and regards it as illegal wherever the laws of the place have forbidden it. A slave being property in Virginia remains property, and his master has all the rights of a Virginia master wherever he may go, so that he go not to any place where the local law comes in conflict with his right. It will not be pretended that the Constitution itself furnishes to the Territories a conflicting law. It contains no provision that can be tortured into any semblance of a prohibition."

The writer has not here distinguished between the judicial recognition of rights and duties existing in relations attributable to universal jurisprudence and the recognition of others, though not so attributable, on the doctrine of comity, so-called. In other places, as pp. 9, 10, 23, he assumes, that whatever a State may recognize as property must be regarded as property in every other forum. And it would appear that he would recognize slavery in the Territory on either principle. But, as stated in the text, though slaves cannot now be internationally recognized as property, because, if property anywhere, they are such in virtue of some particular law (jus proprium), and not by universal jurisprudence (jus gentium), yet the right of the master, and the obligation of the slave, may be maintained in the new forum by the doctrine above stated.

In his Reply to Judge Black's Observations, Senator Douglas speaks very derisively of the doctrine contained in the paragraph cited.

1

See preface, p. vii., to Kansas Laws of 1855.

freedom. Sec. 1. "Any person held in slavery may petition," &c. 12. "If the plaintiff be a negro or mulatto, he is required to prove his right to freedom." 13. "If the plaintiff's right to freedom be established," &c. c. 75. An act relative to fugitives from other Territories or States. The first part relates to fugitives from justice.' Sec. 19-30 relate to fugitives from labor. 19. On proof of title, claimant shall be entitled to a warrant, returnable before any judge of a court of record or justice of the peace, who shall give a certificate, in case of being satisfied that the person claimed is a fugitive from labor, which shall authorize the claimant to remove him. If the person claimed is discharged by the court or magistrate, "the person at whose instance he was arrested shall pay him one hundred dollars, the costs and expenses incurred by him, and all damages he may have sustained." 28. "No person shall take or remove any fugitive from this Territory, or do any act towards such removal, unless authorized so to do pursuant to the provisions of this act." -, c. 96. An act adopting the common law of England and all statutes of a general nature prior to 4 James I. not repugnant to the Constitution of the United States, and the act entitled "an act to organize the Territory of Nebraska and Kansas," or any statute of the Territory., c. 108. On marriages. Sec. 3. All marriages of white persons with negroes or mulattoes are declared to be illegal and void. c. 151. An act to punish offences against slave property. Sec. 1. Persons, bond or free, raising insurrection of slaves-punished with death. 2. Aiding-punished with death. 3. Persuading slaves, "by speaking, writing, or printing," to rebel, &c.,-a felony, punishable with death. 4. Punishment for decoying away slaves. 5. Punishment for assisting slaves to run away. 6. A person who shall carry away from any other Territory or State of the Union any slave, and bring into this Territory with intent to effect the freedom of the slave or to deprive the owner of his services, shall be deemed guilty of grand larceny. 7. Felony to entice slave

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By sec. 1. The governor is authorized to deliver up a fugitive on demand being made according to the act of Congress.

See the law of 1835, of Missouri, from whose statute book this Code of Kansas is popularly said to have been taken.

from service, in this Territory. 8. Punishment for concealing slave. 9. Punishment for rescuing slave from officer. 10. Penalty on officer who refuses to aid in the capture of slaves. 11. Punishment for publishing and circulating incendiary documents. 12. "If any free person, by speaking or writing, assert or maintain that persons have not the right to hold slaves in this Territory, or shall introduce into this Territory, print, publish, write, circulate, or cause to be introduced into this Territory, written, printed, published, or circulated in this Territory, any book, paper, magazine, pamphlet, or circular, containing any denial of the right of persons to hold slaves in this Territory, such person shall be deemed guilty of felony, and punished by imprisonment at hard labor for a term of not less than two years." (This section repealed by act of Feb. 5, 1857, entitled "An act repealing the twelfth section of an act to punish," &c.) 13. "No person who is conscientiously opposed to holding slaves, or who does not admit the right to hold slaves, in this Territory, shall sit as a juror on the trial of any prosecution for any violation of any of the sections of this act."

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1858, Feb. 9. An act repealing the above. Sess. Laws, c. 62.

1861.-Constitution of the State. This is, I believe, the Constitution framed at Wyandot, July, 1859, under a call from the territorial Legislature; it is reported to contain a prohibition of slavery.'

1 A bill for the admission of Kansas was signed by the President, Jan. 29, 1861, while these sheets were being printed. A bill for the admission of the State with this Constitution was passed, in the Ho. of Rep., Apr. 11, 1860, but rejected in the Senate, June 7, 1860. The people of the Territory, by vote of Aug. 3, 1858, had rejected the so-called "Lecompton" Constitution (submitted under act of Congress of May 4, 1858. XI. U. S. St. 269). The same had been voted on, Dec. 21, 1857, in the form prescribed by the Convention which passed it, and, Jan. 4, 1858, in the form prescribed by the territorial Legislature. On the first of these votings it had received the assent of a majority" with slavery;" on the second, was rejected by a larger majority of a larger number of voters. This Constitution contained, under title Slavery-Sec. 1. "The right of property is before and higher than any constitutional sanction, and the right of the owner of a slave to such slave and its increase is the same, and is inviolable as the right of the owner of any property whatever." 2-4. Provides that the Legislature shall not abolish slavery without consent of owners, or compensating them; but may prohibit slaves being brought by immigrants, and other provisions, as to power over treatment of slaves, and trials, common in the slaveholding States. At the date (Dec. 17, 1857; 3d and extra session) of submitting this Constitution to popular vote, the Legislature had

8573. LEGISLATION OF THE INDIAN TERRITORY.

The territory included between the States Arkansas and Texas, on the east and south, and the Territories Kansas and New Mexico, on the north and west, is known as the Indian Territory; being exclusively inhabited by tribes or "nations" of Indians, settled therein under treaties with the national government, but having a recognized power of self-government identified by continuation with their aboriginal independence.'

It might be questioned, whether any right guaranteed against organized governments, either State or national, by the Constitution of the United States, would derive any support from the same instrument as against the authority of these tribes, within their Territory. It might be doubted, whether any law historically derived from the colonizing Europeans can have any territorial extent in this district. Conditions of involuntary servitude appear, however, to have been always recognized among the Indians, as they have universally been among barbarian societies. The tribes who formerly occupied lands within the southernmost States-the Choctaws, Cherokees, &c.-have also held negro slaves, under their customary law, before their removal to their present locality."

The governments of the Choctaws, the Cherokees, and probably of other tribes, are organized under written Constitutions, by which the functions of power are distributed as in

passed resolutions reaffirming the People's Constitution, framed at Topeka, the 23d of October, 1855, in which they recite that, in the spring of 1855, the first legislative assembly "was, by force and violence, seized upon by people foreign to our soil, and a Code of laws enacted, highly unjust and oppressive, and calculated to drive off or enslave the actual settlers of said Territory, and to fix upon them an institution revolting to a majority of the bona fide citizens of the Territory." Session Laws, p. 20.

The State, as admitted, is understood to be bounded on the north by the line of 41°; on the west by the meridian 23 west of Washington. For the portion of territory lying west, for which the name of "Colorado" is proposed, a territorial government is now about to be organized.

'Leading cases exhibiting the relation between the Indian tribes and the United States, are Johnson, &c., v. McIntosh, 8 Wheat. 543; Cherokee Nation v. the State of Georgia, 5 Peters, 1; Worcester v. The State of Georgia, 6 Peters, 515; United States v. Rogers, 4 How. 567. The principal act of Congress, is that of June 30, 1834. IV. St. U. S. 729, and sup. of March 3, 1847. See also notes to Lec. LI. of Kent's Comm.

2 Jones v. Laney, 2 Texas, 342:-That the Chickasaw Indians held slaves in Georgia under their own independent legislative power.

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