;* i- I i IMAGE EVALUATION TEST TARGET (MT-3) 2? /. I Q Itt 12a 1125 1.1 US — ■tt Itt 12.2 '^ II J& 11^ 11^ U4 C HiotDgraphic Sciences Corporation 23 WiST MAIN STriET WEBSTM.N.Y. USM (71«) •72-4503 \ 4 •s? <^ ;\ z ^ CIHM/ICMH Microfiche Series. CIHM/ICMH Collection de microfiches. Canadian Institute for Historical Microreproductions / Institut Canadian de microreproductions historiq ues Technical and Bib'iographic Notas/Notas tachniquas at bibliographiquaa Tha Instituta has attamptad to obtain tha bast origins i copy availabia for filming. Faaturas of this copy which may ba bibliographically uniqua, which may altar any of tha imagas in tha reproduction, or which may significantly change the usual method of filming, are checked below. D D D D D D D Coloured covers/ Couverture de couleur I I Covers damaged/ Couverture endommagie Covers restored and/or laminated/ Couverture restaur^ et^ou pelliculie I I Cover title missing/ Le titre de couverture manque □ Coloured maps/ Cartas gtographiques en couleur Coloured ink (i.e. other than blue or black)/ Encre de couleur (i.e. autre que bleue ou noire) Coloured plates and/or illustrations/ Planches et/ou illustrations en couleur Bound with other material/ Relii avac d'autres documents r*7] Tight binding may cause shadows or distortion along interior margin/ La re liure serrie peut causer de I'ombre ou de la distortion le long de la marge intArieure Blank leaves added during restoration may appear within the text. Whenever possible, these have been omitted from filming/ II se peut que certaines pages blanches ajouties lors d'une restauration apparaissent dans la texte, mais, lorsque cela Atait possible, ces pages n'ont pas it6 filmtos. Additional comments:/ Commentaires suppldmentaires; L'Institut a microf llmA le meilleur exemplaire qu'il lui a 4t4 possible de se procurer. Les details de cet exemplaire qui sont peut-Atre uniques du point de vue bibliographique, qui peuvent modifier une image reproduite, ou qui peuvent exiger une modification dans la mAthoda normale de filmage sont indiqute ci-dessous. I I Coloured pages/ D This item is filmed at the reduction ratio checked below/ Ce document est filmi au taux de rMuction indiquA ci-dessous. Pages de couleur Pages damaged/ Pages endommagias Pages restored and/oi Pages restaur^es et/ou pelliculAes Pages discoloured, stained or foxet Pages dicolortes, tachetdes ou piqu^es Pages detached/ Pages ddtachies Showthroughy Transparence Quality of prir Quality in6gale de {'impression Includes supplementary matarii Comprend du materiel suppl^mentaire Only edition available/ Seule Edition disponlble I — I Pages damaged/ I I Pages restored and/or laminated/ r~T| Pages discoloured, stained or foxed/ I I Pages detached/ r~7] Showthrough/ r~7| Quality of print varies/ l~n Includes supplementary material/ I I Only edition available/ Pages wholly or partially obscured by errata slips, tissues, etc., have been refilmed to ensure the best possible image/ Les pages totalement ou partieilement obscurcies par un feuillet d'errata, une peiure, etc., ont 6t6 filmdes d nouveau de fapon A obtenir la meilleure image possible. 10X 14X 18X 22X 26X 30X v/ 12X 16X 20X 24X 28X 32X "^^ maiffm^ Th« copy fllmad h«r« has b—n raproducMl thank* to tha ganarosity of: Saminary of Quebec Library L'axamplaira filmA f ut raproduit grica A la ginAroaiti da: Stminaira de QuAbac BiMiothkiua Tha imagaa appaaring hara ara tha baat quality poaaibia considaring tha condition and laiEpibility of tha original copy and in kaaping with tha filming contract spacificationa. Laa imagaa suivantaa ont 4tA raproduitaa avac k plus grand soin. compta tanu da la condition at da la nattatA da l'axamplaira film*, at an conformity avac las conditions du contrat da fiimaga. Original copiaa in printad papar covara ara filmad baginning with tha front covar and anding on tha last paga with a printad or iiiuatratad impraa- slon, or tha bacic covar whan approprlata. All othar original copies ara filmad baginning on tha first paga with a printad or iiiuatratad impras- sion, and anding on tha laat paga with a printad or iiiuatratad Impraasion. Laa axamplairaa origlnaux dont la couvartura an papiar aat ImprimAa sont filmte sn commanfant par la pramiar plat at an tarminant soit par la darnlAra paga qui comporta una amprainta d'Impraaaion ou d'illuatration. soit par la sacond plat, aalon la caa. Toua laa autras axamplairaa origlnaux sont flimis an commandant par la prami4ra paga qui comporta una amprainta d'imprassion ou d'iliustration at an tarminant par la darniira paga qui comporta una talla amprainta. Tha laat racordad frama on aach microficha shall contain tha symbol —^(moaning "CON- TINUED"), or tha symbol V (moaning "END"), whichavar appliaa. Un daa symboiaa suivanta apparattra sur la damlAra Imaga da chaqua microficha, salon la caa: la aymbola -^ signifia "A SUiVRE". la symbols V signifia "FIN". Maps, piatas, charts, ate, may ba filmad at diffarant raduction ratloa. Thosa too larga to ba antlraiy included in ona axposura ara filmad baginning in tha uppar laft hand corner, laft to right and top to bottom, aa many framaa aa raquirad. Tha following diagrama illustrata tha method: Laa cartee, pianchea, tableaux, etc.. peuvent Atre fiimAe A dee taux da rAductlon diffArents. Lorsque le document est trop grand pour Atre reproduit en un seul cilchA, il est filmA A partir da I'angia supArieur gauche, de gauche A droite, et de haut en bee, en prenant le nombre d'imagea nAcaasaira. Lee diagrammes suivanta iiiuatrent la mAthode. : 1 ''-^ '", - ■■■■--■ : » ^ ■■ :"' - . ? 1 2 3 4 5 6 ?' v,y W: 2qr ^ " ARGUMENT ; 09 / ROBERT J. WALKER, ESQ. BEFORE THE SUPREME COURT OF THE UNITED STATES, ON THE MISSISSIPPI SLAVE QUESTION, AT JANUARY TERM, 1841. INVOLVING THE POVV^ER OF CONGRESS AND OF THE STATES TO PROHIBIT THE INTER-STATE SLAVE TRADE. l^^^^l/lMWM- PHILADELPHIA: PRINTED BY JOHN C. CLARK, 60 DOCK STREET. 184L ■Mm ""•i^Miw,.,,, :- » ;■-— >\ mfv» Jiawr *»i»*« atilliii mM\'- ^.* ARGUMENT. Mr. Walker said, he appeared only for Moses Groves, of Louisiana, whose de- fence was meritorious as well as legal. He was a mere accommodation endorser, who had been made a party to this illegal contract, without his knowledge or con- sent, through an endorsement in blank for the accommodation of the drawer of the note. This is evident from the record ; but as the question resolved ilself into a decision upon the validity of the contract, the following agreement was filed in the case below. " The case is to be defended solely on the question of the validity and legality of the consideration for which the notes sued on were given. It is admitted that the slaves, for which said notes were given, were imported into Mis- sissippi as merchandise, and for sale, in tiie year 1835, 1836, by plaintiff, but with- out any previous agreement or understanding, express or implied, between plaintiff and any of the parties to the note ; but for sale, generally, to any person who might wish to purchase. The slaves have never been returned to plaintiff, nor tendered to him by any of the parties to the notes sued on.'' It must be observed, that it is not alleged or pretended that my client, Moses Groves, ever had the possession or control of any of these slaves, or that it ever was in his power to tender or return them. The notes sued on were dated December 20, 1836, and were given and made payable in Mississippi; and the validity of the contract depends upon the following clause in the amended constitution of Mississippi, adopted October 26, 1832. That clause is in these words — " Tiie introduction of slaves into this state as merchandise, or for sale, shall be prohibited from and after the first day of May, 1833 : Provided, That the actual settler or settlers shall not be prohibited from purchasing slaves in any State of this Union, and bringing them into this State for their own individual use, till the year 1845." The question arises only on the first branch of this clause; which, it is said, is but a mandate to the legislature to prohibit the introduction of slaves for sale from and after the Ist of May, 1833. But the clause is not directed to the legislature, and is not a mandate in substance or in form, but an absolute prohibition, ope- rating proprio vigore. It requires no legislation to give it efficacy to avoid this contract ; and none such could prevent or postpone its operation. To declare it a mandate, is to interpolate into this provision words of solemn import. No court can introduce into a law, or exclude from it, words not used by the legislature; unless it be clearly necessary to give effect to the law, ut res magis valeat quam pereat. Now the clause — " The introduction of slaves into this state as merchan- dise, or for sale, shall be prohibited from and af\er the first day of May, eighteen hundred and thirty -three," is complete of itself, as a prohibition, operating by force of the constitution itself, from and after the day designated by that instrument; and to change it into a mandate, the woids " by the legislature" must be interpolated. It was an operative fundamental law, ordained by the sovereign power of the state, which called the legislature itself into being ; and though that body might prevent the violation of this prohibition by more efTectual guards and penalties, as thej tt Grants et at. v. Slaughter. - have done in 1837; yet as the prohibition could not be repealed by the legislature by positive enactments, neither would their omission to act, expunge this prohi* bition from the fundamental law. This Court, tlirough Chief Justice Marshall, have said, that the nature of a constitution "requires that only its great outlines should be marked, its important objects designated, and the minor ingredients which compose those objects be deduced from the objects themselves." " The constitution unavoidably deals in general language;" it do« ' not " enumerate the means" by which its provisions shall be carried into operation. 4 Wheat. 407, 8. 1 Wheat. 326. Baldwin's Const. Views, 99, 100, 192. So also the constitution of Missisaippi contained only the important objects and great outlines of the govern- ment, wr.lten and ordained by the people acting in their highest sovereign capa- city, by their delegates in convention assembled ; and all the details of legislation were lef\ to that branch and department of the government to whom that duty ap- propriately belonged. The legislature, in regarding the objects designated, might well surround a constitutional interdict with appropriate penalties ; but they could not render it inoperative, either by positive or negative action ; and whatever course they might pursue, all laws and contracts repugnant to the prohibition would be void. When was this prohibition of the constitution to go into effect ? That instru- ment assigns the day ; it in " from and after the first day of May, 1833 ;" not after the 1st of May, 1833, hat from and after that day and no other. From and after a day specified, fixes absolutely the very day when this prohibition would commence to operate ; and to postpone its operation to any future, uiiknown, indefinite period, at the discretion of the legislature, would be to disregard the plain language and manifest intent of the constitution. Nor were these words, " from and," after the day fixed, introduced by accident. On the ontrary, the clause, as originally pro- posed, was, " the introduction of slaves into this state as mercliandise shall be pro- hibited after the day," &c., page 57 of Journal; and the provision was amended subsequently by introducing the words '^from and" after, &c. Why thus cautiously designate the very dny for the commencement of the operation of this prohibition, unless it was certainly to go into effect on lliat very day, by force of the constitutional interdict? To postpone, then, the operation of this prohibition to any day subsequent to that named in the constitution, is to expunge the time altogether, and leave it dependent upon the fluctuating will of the legislature, obeying or disregarding, at pleasure, this constitutional provision, and giving or refusing operation to it, from time to time, by enacting or repealing laws upon the subject, and thus changing a fixed, permanent, established, fundamental law, into a mere directory provision, operative or inoperative, as the legislature might act or refuse to act, or i-epeal its action upon the subject. But this provision was not only designed to operate of itself from a day fixed and certain, but unchangeably through all time to come, or to be ciianged only by the same sovereign power which framed the constitution. The convention have said, "the introduction of slaves for sale shall be prohibited," &c. This language is general; it is addressed to every one, and to all the departments of government; and why should it, by implication or interpolation, be limited to a direction to the legislature.' It was competent for the convention itself to prohibit this trade ; and if they have used language which, in a statute, all admit would be a prohibition, why shall it receive a different construction in the organic law.' Is a state constitution merely a man- date to the legislature? Is it so in its prohibitions, and especially in those which are contained in general provisions, as in this case, and not in the article creating the legislative department, and assigning its appropriate powers and duties? li* this construction be adopted by implication, in regard to other clauses e ally im- perative in the constitution of Mississippi, it will be rendered, in many oi its most important provisions, absurd and incongruous, nugatory and repugnant. These words "from and after the Ist of May, 1833," have received a settled construction by this court, in 9 Cranch, 104, 119, where they say "The act 1st July, 1812, provided that an additional duty of 100 per cent, upon the permanent duties now imposed by law, &c., shall be levied and collected upon all goods, wares and merchandise which shall, from and after the passing of this act, be im- cl tl Grove$ et ah v. Slaughter, iU • lefislature • this prohi- !e Morthall, eat outlines ingredients '■•" "The mmerate the eat. 407, 8. Btitution of he govern- •eign capa- legislation »t duty ap. led, might they could whatever >rohibition >at inatru- ' not after nd after a ommence te period, uage and after the 'ally pro- II be pro- "on was '■ Why ration of by force >hibition he time islature, ving or pon the w, into t act or 'as not geably power tion of ressed it, by i. was ) used 'ceive man- vhich atinor ? U r im- inost ttled t Ist lent ods, im- ported into the United States from any foreign port or place. It is contended that thifl statute did not laite eil'ect until the 2d day of July; nor indeed, until it was formally promulgated and published. We cannot yield assent to this con- struction," — and the court exacted the double duties upon an importation on tht \st July. Here it is decided, that thecie words, from and after, included t'.ie day named, and such was the settled legal construction when the words were used in our constitution ; and in such cases it is conceded, that the construction is adopted with the words. Why then introduce the word from by an amendment in this case, unless the prohibition was to commence (m that very day navted, and in all time thereafter.'' Thus to designate by an amendment the very day when this pro- bitition " sliall," commence to operate, clearly proves that this should be an abso- lute prohibition; and never to put it into operation unless the legislature acted upon the subject, or at sucli indetinite and distant period as they might designate, is to defeat the meaning of the constitution. Here then the precise date is fixedj and the words are shall be prohihittd. from and after that date. In 2 Wheat., 148, 152, 153, it was decided by this court, that "under the Embargo Act of the 22d Dec. 1807, the words 'a/t embargo shall be laid' not only imposed upon the public officers the duty of preventing the departure of registered or sea-letter vessels on a foreign voyage, but, consequently rendered them liabln to forfeiture under the supplemen- tary act of the 9th Jan. 1808." In this case the court said, this vessel was *' libel- led for a violation of t.he Embargo Act of the 22d Dec. 1807, and the Supplemen- tary Act of the 9th Jan. 1808, the former of which enacts ' that an embargo shall be laid on all ships and vessels in the ports of the United States, bound on a fo- reigii voyage,' and the latter forfeits the vessel tiiat shall proceed to any foreign port or place ' contrary to the provisions of this act, or of the act to which this is a supplement.'" "Was then the sailing to a foreign port, a prohibited act under the embargo law, to a registered or sea-letter vessel .■* If so, the commission of such an act was a cause of forfeiture under the act of Jan. 9, 1808. And here the only doubt is, whether the words 'an embargo shall be laid,' operate any fur- ther than to impose a duty on the public officers to prevent the departure of a regis- tered or sea-letter vessel on a foreign voyage. The language of the act is certain- ly not very happily chosen; but when we look into the definition of the word em- bargo, we find it to mean ' a prohibition to sail ;' substituting this periphrasis for the word embargo, it reads 'a prohibition to sail shall be imposed, &.c.,' or in other words, ' such vessels shall be prckibited to sail,' which words, had they been used in the act, would have left no scope for doubt." Here too, the question raised is whether the words " shall be prohibited," operate any further than " to impose a duty" on the legislature to " prevent" the introduction, or amount to a prohibition. Now the words " an embargo shall be laid" operated in presenti, as an embargo, and not merely as directory to the pub- lic officers ; the words " a prohibition to sail shall be imposed," operated in the like manner, as also did, beyond all doubt, the words " such vessels shall be prohibited to sail." Tbe words then shall be prohibited operated as a prohibition, and in presen- ti, and if the words shall be prohibited to introduce would so operate, what differ- ance is there in the words the introduction shall be prohibited? The case then is clear in point, and that too, on the construction of a pennl statute inflicting a for- feiture ; and the construction of these words shall be prohibited had thus been set- tled when our convention adopted them in 1832. And here it was a traffic that was prohibited. Now what is the meaning of the terms prohibited traffic? It is an unlawful traffic, for the past participle is thus repeatedly used as an adjective. The clause would then read, the introduction of slaves for sale, shall be unlaw- ful from and after the 1st of May, 1833, and the proviso would then read, Provided, that it shall not be unlawful for the actual settler or settlers to purchase slaves, in any state in this Union, and bring them into this state for their own individual use, until the year 1845. But if the proviso, from the different terms used, and failure to designate the day upon which the prohibition should commence to operate, was susceptible of a different construction, it would only render still more imperative the main provision, by which the traffic was prohibited from and after the day named in the constitution. hr Groves et al. v. Slaughter. Grants of legiilative power mandatory and permiiiive, frequently occur in the conatitulion, and the convention well knew how to make such grants, and to dii- tinguiah between those which were mandatory or permissive. The first section contains three distinct grants of power, permissive to the legislatdre, in relation to slaves; and one of these was a power to proiiibit tlie introduction of a certain de- scription of slaves This power to proiiibit the introduction of slaves of one class by all persons, and the positive prohibition in this case of the introduction of slaves as merchandise, demonstrates, thut thu convention well understood the diiference between a power to prohibit, and an absolute prohibition. Throughout the same instrument numerous grunts of power occur mandatory to the legislature. Thus in the 2()th sect. on of the 4lh article, it m declared, that "the legislature shall pro- vide by law for iletermining contested electioiisof judges and other officers." The 10th section of the 7th article, declares " the legislature shall direct by law in what manner, and in what courts suits may be brought against the state," These and many other grants in the constitution are niniidatory injunctions to the legislature to pass certain laws. Whenever, then, tlie convention designed to address the legis- lature in the language either of permiHtiion or command, t' y used invariably ap- propriate words for that purpose, and dittering entirely I .i those provisions or prohibitions designed to operate by their own authority : .id in this as in many other similar cases, operating by virtue of the constitutimi itself. If the terms in the constitution " shall he" are mere directions to tl"i legislature, mandatory or permisiiive, nnd inoperative until the legislature shall have obeyed the constitu- tional injunction, then much the most important part of the constitution, which went into operation immediately, would have remained suspended until the legis- lature acted upon the subject. Thus the 1st section of the 2d article declared, that "the powers of the government of the state of Mississippi shull be divided into three distinct departments;" thus seeming to contemplate a future distribution of these powers; yet we know that this division was made and operated by virtue of the constitution itself. Section 9, article 1 , declares : " The people shall be secure in their persons, houses," «&c. Section 17, " All persons shall, before conviction, be bailable," &c. Section 2, article 3, " Electors shall in all cases, e.\cept, «&c., be privileged from arrest during their attendance on elections." Section t; " The legislative power of this st-xte shall be vested in two distinct branches," &c. Sec- tion 19, " Senators and representatives shall in cases except, &c., be privileged from arrest," &c.; not by future lesrisiation, but by this provision of the constitu- tion. Section 1, article 5, " The chief executive power of this state shall be vested in a governor," &c. Section 2, article 6, " Ail impeachments shall be tried by the senate." "The governor, &c., shall be liable to impeachment." In all these cases, and throughout this constitution, the terms a7)«// br., operate proprio vigore. The terms "shall be seciire," "shall be bailable," "shall be privileged," " shall be vested," mean are secure, are bailable, are privileged, are vested. This is the set- tled meaning of these terms shall be, in tiie constitution; they operate propiio vigore, and should receive the same construction in the clause now under consi- deration. The terms "shall be" operated immediately in all these clauses, and present a much stronger case than the one now under consideration. Here the terms " shall be" are the appropriate and proper terms, requiring no construction by which tl ay shall be made to operate in presenti; but operating from and after a future day fixed unchangeably by the constitution. Tlie day too thus fixed, was but six months distant, a time barely sufficient to give full and fair notice throughout the state and Union, of the existence of this prohibition, conforming in this particular to many similar laws on the same subject in other states, quoted in the conclud- ing branch of this argument. Why name a day at all, and especially a day fixed and certain, and so near at hand, if this clause were merely directory to the legis- lature? If any doubt could still remain, it must vanish upon an investigation of the legislation of the state on this subject. By the act of the territorial legislature of Mississippi, of the Ist of March, 1808, certain restrictions are imposed upon the introduction of slaves as merchandise, but chiefly designed to prevent the intro- duction of dangerous or convict slaves. (Tur. Dig. 386.) Thus stood the law, when Groves et al. v. Slaughter. in 1817, we formed our first constitution, which contained the following cUum: " They (the legislature) shull have full power to prevent slaves from beini; brought into this state as merchandise ;" but there was no prohibition of the traflic. By the uct of June IH, 1822, the territorial law before quoted was substantially re*enacted. Revised Code, »«». Thus stood the statutes and the organic law when the convention assembled which adopted the new constitution of 1832. The Hrst contained the fullest grant of power on this subject to the legislature. Why then this important change in this provision from a mere grant of power to the legislalure, into the prohibitory terms of the constitution of 1832, unless an absolute prohibition was designed by the frainers of that' instrument ? The one was a grant of power to the legislature, the otiinr was a prohibition. The reason of the change is obvious. The legisla- ture, during the intervening period of fifteen years between the adoption of the old and of the new coniititution, had never fulfilled the trust confided to them by pro- hibiting the introducliun of slaves as merchandise; and therefore the framersof the new constitution determined to confide this trust no longer to the legislature, but to prohibit this trafKc themselves, by an absolute constitutional interdict, operating of itself, upon a day very near at hand, fixed and certain, and placed, as were many other subjects by the constitution, above the control of the legislature. The his- tory of tliat period will also furnish other reasons why the constitution of 1817 was changed by that of 1832 from a direction to the legislature, into a prohibition. Events had occurred in Southampton, Virginia, but a few months preceding the period when the convention of 1832 assembled, which had aroused the attention of the Southern States to the numbers and character of the slave population. The influence of that insurrection is no where more clearly demonstrated than in the extraordinary votes and speeches in the legislature of Virginia, assembled shortly uiler that catastrophe. If insurrection had not appeared in Mississippi, there had been many appreliensionsnpon the subject; and looking at the tragedy just enacted in our sister state, the convention introduced this provision, to produce among other good effects, additional security to the people of Mississippi. Whilst, in this constitution, they gave to the governor power to call forth the militia of the state "to suppress insurrection," they guarded against the supposed danger of that event, by tins important constitutional interdict. If Virginia had been driven to the very verge of the abandonment of her ancient institutions, by the events which had occurred within her limits, was there not some reason that the convention to which was entru.sted the st'curity of the people of Mississippi, should interpose some guards for their protection ? In looking at the general census of 1830, then recently [lublisiied, they saw, that whilwl in Virginia the whites outnumbered the slaves 221,511, in Mis.sissippi the preponderance of the whites was but 4784, and that the slave population was increasing in an accelerated ratio over the whites, the former now greatly outnumbering the latter. In looking beyond the aggre- gates of the two races in tiie state to particular counties, they found that in an entire range of adjacent counties, the preponderance of the slavn over the white population was three to one ; in man}' of the contiguous patrol districts, more than ten to one, and in many plantations more than one hundred to one. In looking at the policy adopted by our coterminous and sister state of Louisiana, they found that, in that state, the legislature, by laws passed the 19th November, 1831, and 2d April, 1832, had under severe penalties' prohibited the introduction of slaves as merchandise, and declared the slaves so introduced to be free. Such was the legislation of Louisiana immediately preceding the assembling of our convention, and such the circumstances and example under which we acted. We acted as Louisiana had just done, by introducing a provision designed to operate after the short notice of six months, as an absolute prohibition. The subject had attracted great attention when the delegates were elected to the convention; and the people fully expected and required final and definitive action by the convention itself on this question, and they were not disappointed. Such was the opinion which prevailed when the first legislature assembled un- der the new constitution, in Jan. 1833. This legislature was assembled at the lime specified by the convention, by virttie of writs issued by that body, to orga- a2 ft Groves et al, v. Slaughter, nize the govarnmtnt under the new conetitution. If thii olauM be in iteelfa pro* liibitinn, then it did not operate as a command to tiie legislnture, But if it be not a prohibition, then it ii conceded to be a nmndute, directed ipecifically to the legia- luture, commanding them to prohibit the introduction of elavei aa merchandiee from and aAer the let of May, 1833. If that legislature adjourned without fulfill- ing thia itijunotion, it must have remained forever unfulfilled in one most important particular, namely, the time fixed by the convention from which the prohibition should commence to operate; for, under the provision of the constitution, no other legislature could convene until November, 1H83, u period long subsequent to th« time designated for the commencement of the operation of thie prohibition. The legiulature was a departmt-nl of the government, created by the convention, and assembled in pursuance of its aiitlmrity . Under the 7th article of the new con- stitution, every member of this legislature lina taken a solemn oath to support that instrument, and had they conceived the provision in controversy to be a mandate directed to the legislature, they would linvu ditiregnrded those oaths, if they had failed to make any prohibitory enuctinent in |)urHuance of this injunction of the constitution. Had even this mandate been in oppoHilion to their view* of public policy, it would still have been obligatory upon them. Ihit this legislature passed uo laws in pursuance of this provision, because lliey did not conceive this clause to be a mandate directed to them, but un operative prohibition of the constitution ; and that the omiHsion was not casual, is proved by the fact, that they proposed for the consideration of the people at the next November election, an amendment to the constitution, striking out this 2d sectiim in regard to slaves, and introducing in lieu thereof, the following provision : " I'lie legislature of this state shall have, and are hereby vested with power to pass, from time to time, such laws regulating or prohibiting the introduction of slaves into this state as may be deemed proper and expedient." (Laws of Mississippi, 178 ; March 2d, 1833.) The legislature thus endeavoured to change a prohibition, by their proposed amendment, into a mere discretionary authority, which they miirht or might not exercise at their pleasure. Thia attempt on the part of the ieglttlature to obtain for themselves this discretionary power failed, as they conceded at the succeeding session of 1833. The amandment, in order to be incorporatt'd into tlie constitution, must have been voted for by " a majority of the qualified electors voting for the members of the legislature;" and it is obvious that 4500 votes given for this amendment, must have constituted a small fraction of the voters of the state at that period. The vote of the state for governor in November, 1839, was 34,332. 1 have not the vote of Nov. 1833, but 4500 could not have been one-third of the vote then actually given for members of the legislature. A very small vote was given against the amendment, and it is surprising that so many votes were given, as no vote on the question wos a vote against the amendment. The legislature, in December, 1833, acknowledged, that their proposed amendment had failed. The subject was then again before them. They had renewed their oaths to obey the mandate of the constitution, and why was obedience again refused.' Because this legislature, like its predec»B8or, did not view this provision as a mandate directed to them, but as a prohibition. It is said, that at the date of this note, the validity of such aeon- tract was not disputed in Mississippi; but this is entirely erroneous, and the mis- take is proved by the very quotation made by our opponents, from the message of Governor Lynch, of the Ist Monday in January, 1837. That message declares at that date, that "it has now become a mooted question, under this clause of the constitution, whether contracts for that description of properly can be enforced." Now the date of this contract is the 20th of December, 1836, but two weeks pre- ceding the admission thus made in the executive message, that the validity of these contracts was then "a mooted question." There is no fact more notorious in the state, than that the legality of these tronsactions was disputed at the date of this contract; and the suggestion that tljis illegality is an ex post facto discovery, when bankruptcy became universal, is entirely erroneous. This messoge shows no embarrassments at that date. The legislature were then engaged in making banks and paper money. We were then careering onward upon the tide of a de- lusive prosperity ; and the exploaion of the succeeding spring, came upon us like Grovti et al. v. Slaughter* ■om« of thoie tropical hurrioanei, whoie only warning coniiita in on* miildfln uvcrwhelining aweep of ruin and dmulation. It is trur Oovernor Lynch did, aflar- wardi, in liia meaaage of May, 18S7, recuinni«tid the pnrorcnment uf thia pruhibi* tiun. It i» tru« alau that tho legiMlatiire diil th«n guard agninat the violation of thia prohibition, by puniihing tliH trunM^rt-iiiDra of it with (in« and iinpriaoniiient: but all thia iiiipliea no adiniaaiun of the |ir> vioiia validity of theav contracta, for thia court have anid that a conatitution ia not the |iliio<< in wliiuh the minor detuila of legialation, theae paiiia ami p<>naltit)B nr« to !>«< found. Uut if this queation waa mooted aa wo have aeen at llie date of thia coiitruut, it waa not on the ground that thia waa a mandate ; but tliat, rnt a proliihition, it interdicted only the ini(iortation and not the aale. The proof on thia point i8 iinipic; but we need only refer to the opinion of Chancellor liuckner, ao much relied on by our opponenta, in which ha reciteii nil the >/rounda aaaumed in belinlf of the ncf^ro tradera, namely : — " iMt. 'i'hal ihongh the introduction of the iifjrriieH may have been illegal, yet that the coniecpienci's of that act could not be connnunicated to the contract of aale and purchaae, which waa a aepurate and diHtinct transaction between them- aeivea and the cornplainanta. '* 2d, If the reverae of the firat propoaition were true, it ia contended that the ille> gality of the contract waa a matter of pure defence in the court of law." Here, even at that late day in thia controverHy, neither theae wealthy and powerful traderH, nor their learned counsel, deemed it even a point in the controversy, that thia proviaion waa not a constitutional interdict, but thut the only «iuestion was, whether that interdict affected the sale or the introdu(Mion only. Chancellor Buckner also takes up fully the constitutional question, and declares his determination " to put it in train for ultimate decision." In that opinion, which is very elaborate, he does not pretend that this clause in the constitution wns iiotof itself prohibitory ; but on the contrary, he says : " Thus we intend to prohibit the multiplication of slaves in thia statu, but as we do not intend to extend it so fur as to prohibit our own citizens from bringing them in for their own utie, in order to render the introduction illegal, it must appear as a part of tiie act, that tin* intr.nt.ion existed to use the slave so in- troduced, as an article of merchandise or for siilf. If the framersof the couHtitu* tion intended any thing beyond thisnonstruction, instead of the language employed, we should expect to find them declaring that the sale of negroes in this state, which were introduced as merchandise or for sale, shall be prohibited from and after the tirst day of Mny, 1833. Such a construction would fully sustain the con- struction contended for liij the comjiUii mints counsel; there the 'sale' not the 'intro< duction' would be the thing prohibited. To riliow my understanding of it more clearly, I mean to declare, that the moment the negroes were ' introduced as mer- chandise or for sale,' the offence was at once com/ilete. JVo further step was necessary to brinir it within the mtaninfr of the prohibilonj clause of the constitution." Here it is most distinctly conceded, thut the act of iniportntion with intent to sell, is rendered illegal by "the prohibitory clause of the constitution;" and that the contract by vir- tue of the true construction of that clause would have been illegal, if the sale had been embraced in the provision. And not only is this point thus clearly conceded in this case, but no decision, so far as my knowledge extends, has ever been made by any judge against us on this point. Upon this point then we have tlie decision of the district judge of the United States for the state of Mississippi (Mr. Gholson); the decision of Chancellor Buckner so much relied on by our opponents ; and finally, the decision of the highest court of the state of Mississippi, after the most elaborate argument, the question being sent up for the express purpose of obtaining a final adjudication. That opinion, too, was delivered by a gentleman distinguished al the bar and on the bench, as a statesman and jurist; who had repeatedly served with distinction in the legislature of the state, upon the bench of the circuit court, in the convention which framed this very constitution, in the Senate of the United States, and finally as a member of the highest court of the state. He was not only a member of the convention which framed the constitution, but chairman of the very committee to which thia clause was referred. He was a witness of all that transpired in that committee and ia that convention ; he participated in all the debatea upon the question, observed VUl Groves et al. v. Slaughter. all the modifications of this provision from the imperfect form in which it was originally presented, until it was perfected as it now stands ; and his opinion as to the intention of the convention, is the testimony of a witness as well as the deci- sion of a judge. Concurring with him, was the able and learned Chief Justice of the state, and there was no dissenting opinion. As authority merely, such a decision under such circumstances, pronounced by the highest court of the state upon a question regarding the construction of a clause in their own constitution, upon a local question with which, and all the proceed- ings relating to it in the convention and in the legislature, they must be more familiar than this court cai. be, ought to be conclusive. In delivering, after solemn argument, the deliberate opinion of the high court of errors and appeals of Mississippi, Judge Trotter says — "Two questions present themselves for the consideration of this court: 1st. Whether the consideration of the note for which the judgment was given is illegal, and renders it void. 2d. Whether a court of chancery can give relief. " The constitution of 1832 provides that ' tlie introduction of slaves into this state as merchandise, or for sale, shall be prohibited from and after the first day of May, 1833.' That it is competent for the people in canvention to establish a rule of conduct for themselves, and to prohibit certain acts deemed inimical to their welfare, is a proposition which cannot be controverted. And such rule, and such prohibition will be as obligatory as if the same had been adopted by legislative enact- ment. In the former case it is endowed with greater claims upon tlie approbation and respect of the country, by being solemnly and deliberately incorporated with the funda^nental rules of the paramount law, and thus placed beyond the contin- gency of legislation. It has been argued that this provision in the constitution is merely directory to the legislature. Tiiis interpretation is opposed, as I conceive, to the plain language of the provision itself, as well as to tlie obvious meaning of the convention. It cannot surely be maintained that tiiis provision is less a prohi- bition against the introduction of slaves as merchandise, because it is not clothed with the sanction of pains and penalties e.xpressed in the body of it. That bt^longed appropriately to the legislature. Their neglect or refusal to do so, might lessen the motives to obedience, but could not impair the force of the prohibition." Here, then, is the question made for the final adjudication of the court, and clearly determined by them, and with on ability worthy of their high reputation. It was, too, a decision in favour of the trader in slaves, upon the doubtful question of chancery jurisdiction, and lie was permitted, fi)r want of a defence at law, to reap the fruits of his unlawful contract; thus vindicating the court in this very decision, from the charge of any bias as judges in favour of our own citizens, so unjustly urged by our opponents, as a reason why that decision should have no weight with this court. The judges of that court, for integrity and impartiality, are universally esteemed by the bar and by the people, and by all men and all parties in the state; any insinuation that these judges or any one of them ever had been or ever could be governed by any unworthy bias, could only subject to just suspicion those by whom such a suggestion could be made, and those upon whom it could have the slightest operation. I am restrained by my respect for this court, from expressing here my indignation at the assault made upon the functionaries and people of Mississippi. It is true, as stated, that great embarrass- ments pervade the state, and that it is strewed with the wrecks of broken hopes and bankrupt fortunes. But has the honour of the state been tarnished, have the laws been disregarded, the courts overthrown or corrupted, or the constitution subverted .' Has rebellion arrested for a time the progress of justice, as it once did from similar causes, in the great state of Massachusetts ? Have we fo11ov;ed the evil example of another great st 'e of the west, by enacting laws permitting a tender of worthless paper upon exe utions for debts payable in gold and silver.' Have we, to enforce these enactments, trampled upon the fundamental law of the state and of the Union.' Have we entered the sacred halls of justice, and by the strong arm of legislative and popular power, expelled from the bench the highest judicial functionaries, and placed ursurpers there upon the broken fragments of (he conBtitution .' Have we — but even in retaliation I will darken no more, with d Groves et al. v. Slaughter. ix the pencil of truth, thoce scenes of misfortune, delusion and folly, which a thou- sand glorious deeds and ennobling sacrificeB, in war and in peace, should expunge from the history of that patriotic commonwealth. But from that state at least, if not from all the Union, though we have never asked their sympathy for our suf- ferings, might we not justly challenge their respect for the fortitude with which they are borne. Again and again has the stern mandate of the law entered the dwelling of the husband and wife, and driven forth from it, Ihem and their chil- dren, witliout a roof to shelter or a home to receive them. Again and again have endorsers and sureties for others sutfered tlie fate of tiie principals, and stood by in silence whilst the sheriff or marshal proclaimed the sale, for the debts of others, of the last remnant of that property, which years of honest industry had accumulated. And was the law resisted ? No ! Tiiese gloomy scenes have been marked, almost universally, by u quiet endurance of suffering, and virtuous submission to tlie laws of the land. I regret the occasion that has e.xtorted these remarks upon a subject which should never have been introduced into this argument; but, when Missis- sippi is thus arraigned before this iiigh tribunal, Ibis vindic ation is just and proper. But, if tills clause be not a prohibition, it is conceded to be a mandate to the legislature, requiring from them implicit obedience, it is admitted, that if the le- gislature had passed an act repugnant to this provision, that ant would have been as clear a. violation of their oaths and of the constitution, and as utterly void as if this clause had been an absolute proliibiiiim. Th« mandate then established a policy wliich the legislature could not overthrow; and being binding upon the le- gislature, was obligatory on the judiciary. The government itself, in all its branches, was created by the convention; they were all creatures of the -jorstitu- tion, and no one department of that government could violate any mandate or pro- vision of that constitution. The time was not indefinite, but fixed on the 1st of May, 1833, from which very day, in all tine to come, this mandate should be made to operate ; and if the legislature neglected to enforce this mandate by penal sanctions, did it therefore follow, that the judiciary should decree a performance of a contract, thus required to be prohibited from and after a certain day fixed by the constitution ' A contract contrary lo the public policy of a state will not be en- forced by the judiciary. This policy may arise from the common unwritten law of a state, from its peculiar situation and institutions, or expressly or by impli- cation, from a statute or constitutional provision. Now the convention had pro- mulgated it as the policy of the state, that from and after the 1st of May, 1833, slaves should not be introduced as merchandise ; and was the will of the convention or of the legislature to be obeyed by the courts in regard to this policy? It was the will of the convention that this trafHc should cease on a day certain and fixed by the constitution; and if the legislature, which could not change this policy, failed to discharge their duty, that was no reason why the courts should follow their evil example. The courts might well say, and it was their duty to say, that although we cannot act affirmatively against tlie violators of this policy, they shall not make the judiciary the instruments, by a decree in their favour, to overthrow a great constitutional mandate, designed to accomplish important purposes. The courts of a country will often ascertain without a statute, and often from the mere impli- cation of a statute, or merely from the situation of the country, what is contrary to the policy of a state, and they will enforce no contract repugnant to that polic3'. To no higher source then, could the courts of a state go, in order to ascertain what was the true policy of a state, than to a mandatory clause in the constitution. Had the clause in question been a mere grant of jjower to the legislature, the courts might have waited the action of that body; but, when the clause was man- datory, it promulgated the policy of the stale, from an authority paramount to that of the legislature, and which policy, the legislature, neither by acting nor declining to act, could expunge from the constitution. If the will of the legislature were ascertained to be one way in regard to this policy, and that of the convention the other, which should be obeyed by the judi- ciary, when required to act by decrees affirmatively upon the question.' Can there be a doubt that the true answer to ouch a question should be in the language of this court, in 4 Wheat. 408, " If indeed such he the mandate of the conatitution, ,«.*»«" X Groves et al. v. Slaughter. we have only to obey." This view of the subject is sustained by a late una- nimous decision of the Supreme Court of Tennessee, in which tiiey say : " In the precise state above supposed stood the matter, when the convention in 1834 adopted the 5th section of the 11th aiticU of the reformed constitution, in which they provide, that the legislature ' shall pass laws to prohibit, the sale of lottery tickets in this state.' This was itself a prohibition, and was announced to the com- plainants before the formation of their contract with the defendants." Bass vs. Mayor, «&c. Meigs, 421. Upon tiiis ground alone, the court pronounced the contract invalid, which was dated March '.id, 1835, and no law was passed till the 13th February, 1836, wiien a law was enacted prohibiting lotteries; as a law was passed in 1837 by the legislature of Mississippi prohibiting the introduction of slaves as merchandise. But independent of tlie subsequent law in Tennessee, their courts pronounced the contract invalid, in a case where many thousand dollars had been advanced to the city of Nashville, upon the sale of this lottery for the useful pur- pose of improving the streets of tiial city, and which money would be entirely lost if the contract were declared invalid. But it was so pronounced upon the sole ground that the constitutional mandate to pass laws prohibiting lotteries " was it- self a prohibition ;" because by this mandate the policy of the stale " was announced to the complainants before the formation of their contract with the defendants," and they had no right to ask the court to disregard that policy, upon the ground that the legislature had failed to provide the proper penalties. The court could not supply those penalties, but they might well declare that they would not become instrumental in defeating this great i)ubiic policy by decreeing the performance of contracts repugnant to it. If such a construction of the constitution of Tennessee, upon a niiie mandate to prohibit lotteries was proper, how much stronger is the case before us .' Here the subversion by the courts of the policy promulgated in the constitution, might involve not merely the property, but the lives of the people of Mississippi. Had not the people tlien in such a case a right to require that their courts should not become au.viliary in encouraging the subversion of this policy, by the enforcement of contracts repugnant to it? The legislature might never agree upon the details of a bill for the punishment of the transgressors of this policy ; and must tills mandate therefore be expunged by the courts from the constitution, or changed into a grant of discretionary power to the legislature ? If so, this clause might as well never have been inserted in the constitution. It is sufficient for courts to know in any case, that the enforcement of a contract will be dangerous to the peace and prosperity of a state ; and they have invariably refused, from a regard to the public good, to enforce such contracts. What better evidence could the courts of Mississippi desire, that the enforcement of this contract would be subver- sive of the true policy of the state, and dangerous to its peace and prosperity, than the prohibitory mandate of the constitution .' If, as a consequence of a refusal of the courts to maintain this cardinal policy, the state had been filled with insurgent slaves, or with slaves in an excess too far beyond the white population, and the scenes of Southampton had been re-enacted within our limits, would the judicial ermine be unstained with the blood of the innocent victims, who had appealed to them in vain to discharge their duty, by denying their aid to all these contracts thus clearly repugnant to the prohibitory policy of the constitution ? Why should the judicial sanction be given to the violation of a constitutional mandate; and the legislature, thus encouraged by a co-equal and co-ordinate department of the government, to persist in refusing to discharge the duty imposed by the constitu- tion ? It is clear then to my mind, that, whether the clause in question be of itself an absolute prohibition, or a prohibitory mandate, the contract is alike invalid, in accordance with reason and argument, as well as upon the authority of the unnni* inous decisions of the Supreme Courts of Mississippi and Tennessee. Such was the view which those courts took of their duty to the people under these clauses in their respective state constitutions; and it would be strange indeed if this court should now inform those tribunals, that they had erred in this respect, and di- rect them to retrace their steps on this question. The people of Mississippi in con- vention, when creating a government had said, this traffic " shall be prohibited from and after the Ist of May, 1833." Was it then competent or proper for the judiciary, f^ a late una- y Buy : " In on in 1834 n, in which e of lottery to the com- " Bass vs. the contract ill the 13th was passed of slaves as iheir courts irs had been useful pur- entirely lost Don the sole ies " was it- s announced ndants," and ground that jrt could not not become rformance of f Tennessee, ronger is the omulgated in of the people lire that their his policy, by t never agree s policy ; and tnstitution, or 10, this clause I sufficient for dangerous to from a regard ice could the lid be subver- osperity, than )f a refusal of irith insurgent ation, and the d the judicial id appealed to liese contracts Why should idate; and the tment of the ! the constitu- ion be of itself ke invalid, in of the unnnU )le under these e indeed if this espect, and di- iissippi in con- irohibited from r the judiciary, Groves et al. v. Slaughter. xi who are but agents for the people under this government, d iving their eAistence and authority from the constitution, and bound by all -if .anctions, to say this trade ahall not be prohibited on the day fixed by the conve. ' i, but shall continue upheld by our decrees, until certain other agents of the pt,opie superadd legislative penalties.'' A "law" against the mandate would be "void," and so must be declared by the courts ; and yet negative action, or a failure to act in pursuance of the mandate, it is contended, is obligatory upon the judicial tribunals. These tribunals are not created by nor do they derive their appointment or authority from the legislature, nay more, they are expressly authorized to restrain that department within the constitution, by invalidating all their acts repugnant to that instrument ; and it would be strange indeed, if when that paramount law which all were bound to obey, declared this traffic shall be prohibited on a day certain, that the courts who are the guardians and interpreters of the constitution, should say, it shall not be prohibited on that day named by the convention, but only on such other future day, as may be designated by the legislature. Even if legislation, additional and penal, was CDntemplated by the convention, does it therefore follow that the trade was lawful and proper for judicial sanction .' On this second point also our highest court, in the case above quoted, declare it immaterial whether it be a mandate or a. prohibition. They say, " in either case it fixes the policy of the state on this sub- ject, and renders illegal the practice designed to be suppressed." These views, thus declared I'nanimously by the supreme courts of two of the states of this Union, are in accordance with just views of constitutional liberty. The formation of the constitution of a state is an act of sovereign power emanating directly from the people. Legislation is not an act of sovereign power. The le- gislature is not sovereign. It is but a co-ordinate department of the government, created by the constitution from which it derives all its powers; and when the people have inserted therein a mandate, declaring that from and after a day named by them, such a thing shall be prohibited, would it not be strange, because one de- partment of the government, to whom this mandate was addressed, had disobeyed it, that it should therefore be considered a dead letter by another co-equnl and co- ordinate department of the government, sworn to support the constitution, to main- tain inviolate all its provisions, to repudiate all contracts repugnant to its spirit or policy, and to declare void, and render inoperative, all acts of any department or persons opposed to its provisions? The legislature could pass^no act of grace or indulgenci', dispensing with this mandate, and legalizing contracts repugnant to it; nor would their disobedience and failure to act constitute a just cause of disobe- dience by that very department which was not only sworn to support the constitu- tion, but whose peculiar duty it was to expound that instrument, and to keep all persons and departments within its limits, whenever a case arose for the exercise of their judicial functions. What is the meaning of the oath taken by the judges of our high court to '^support the constitution?" It is to maintain tlie supremacy of the constitution, and to enforce no laws or contracts repugnant to any of its mandates. And if an act giving bounties for the violation of this mandate would have been void, why is a contract repugnant to it. unsanctioned by any law, valid, the first being a legislative enactment, the second a confederacy of individuals to disregard the mandate? Suppose this mandate had been addressed to the Execu- tive, could the legislature, with his concurrence, or without it, by the constitutional majority of two-thirds, have passed a valid law in opposition to such a mandate ; and would the judiciary, by affirmative decrees, have enforced such an enactment? Or if the mandate had been addressed to the judiciary, would an opposing law have been valid ? Surely not. And the reason in all these cases is the same, because no one of the departments of the government, when required to act nffirviativcly, can disregard any mandate of the constitution. The policy of a state may be an- nounced in the constitution as the will of the people, either in a mandate, or in any other form ; and however announced, no court can disregard that will, or sub- vert that policy. The supremacy of the constitution is the great cardinal principle of American lil)erty, from which there is no appeal but to force; and to subvert its principles, c disregard its mandates, is anarchical and revolutionary. If the clause in question be converted into a mandate to the legislature by interpolation and im< xu Groves et ah o. Slaughter. plication, why is it not declaratory by conBtriiction, as well as mandatory; decla- ratory of the policy of ^e state on a day fixed and certain, and mandatory to the legislature to enforce that policy by appropriate legislation P This clause, marking the will of the convention aa to this policy upon the day named by them, was de- claratory of that policy ; not a policy to be established hereafter by grants of dis- cretionary power to the legislature, but declared in a mandate, imperative upon that body, and announcing to all the will of the convention. The words shall be prohibited, on a day named by the convention, did announce the policy designed by them to be established on that very day ; and if, by interpolation and implica- tion, we change these words into a mandate addressed to the legislature, shall we also so interpret these words, thus interpolated by conjectural construction, as to subvert the policy thus announced in terms clear and explicit, and render the whole clause dependent, from time to time, upon the fluctuating will of the legis- lature, inoperative without tlieir action, changeable at their pleasure, and amount- ing to nothing more than the mere grant of discretionary power to the legislature, commencing when they legislate, and ceasing when they repeal the present or any future enactment on the subject. In 2 Dal. 304, Judge Patterson, of this court, said: — "Every slate in the Union has its constitution reduced to written exactitude and precision. What is a consti- tution .' It is the form of government delineated by the mighty hand of the peo- ple, in which certain first principles of fundamental laws are established. The constitution is certain and fixed; it contains the permanent will of the people, and is the supreme law of the land ; it is paramount to the power of the legislature, and can be revoked or altered only by the authority that made it. What are the legislatures.' Creatures of the constitution." " The constitution is the work or will of the people themselves, in their original, sovereign, and unlimited capacity. The one is the work of the creator, ond the other of the creature. The constitu- tion fixes limits to the exercise of legislative authority, and prescribes the orbit within which it must move." " It is a rule and romtnission by which both legis- lators and judges are to proceed ;" and " the judiciary in this country is not a su- bordinate, but co-ordinate branch of the government." Was not the prohibition of the introduction of slaves as merchandise from and after a day "certain and fixed" by the constitution, one of those "first principles" announced in that instrument as " the permanent will of the people," " paramount to the power of the legislature," and furnishing the "rule and commission by which both legislators and judges are to proceed.''" Now, by disregarding this mandate, the courts v/ould make an act, or the absence of an act, of legislation, paramount to the fundamental law ; they would exalt the legislature above the people, the creature above tiie creator, and elevate the policy of the legislature above that of the constitution. It is admitted that if this clause were in a law it would be a prohibition, but as it is in a constitution it is said to be a mere direction to the legislature, Ncnv the constitution is a law, the sovereign law, the paramount law, the fundamental, the supreme law, the permanent law, the law of highest obligation, the lex legum, the law of laws. The constitution of Mississippi of 18 17, of which that of 1832 is an amendment, declares that therein and thereby the people " do ordain and establish;" which is quite as strong as do enact ; and all laws contrary to any of its provisions are declared " void." It is then an act of sovereign legislation, ordaining and estab- lishing certain permanent rules and fundamental principles of public policy, 'of universal obligation throughout the state, and not mere directions to any one de- partment of government. In England, their early and fundamental laws, and especially their Magna Charta, were called constitutions; and before tiie revolution these were called by our ancestors, " the constitution," the " Englisji constitu- tion," " the constitution venerable to Britons and Americans" — 1 Journal American Congress, 60, 63, 138, 148,149, 163. Many of the fundamental principles of public liberty contained in Magna Charta are copied into the constitution of Mis- sissippi and of the other states. How then is this great constitutional law regarded and construed in England ? In the first place, then, it was a law, and is thus de- scribed in Dwaris on Statutes, 801 — " Magna Charta, 9. H. 3, is the earliest staiut* Groves et al. t. Slaughter. xiii we hnve on record" — " It contains 37 chapters." Among the rules of construing this t'urulamental law here laid down was tiiis, that " no sanction was wanting to enforce, its obligations," that no judgment could be given by any court " contrary to any of its points," but that it sliould be observed with " the most scrupulous care" — Lord Coke says in regard to it, " As the gold finer will not out of the dust, threads, or shreds of gold, Id pass the trust crumb, in respect of the excellency of the metal, so ougiit not the learned reader to let pass any syllable of this law in respect of the excellency of the matter." But here in our Magna Charta, the fundamental law of the state, consecrated ns the act of the people in their highest sovereign capacity, we are to give less effect to its provisions than to subordinate legislative enact- ments. In a statute, it is admitted these words would be a prohibition, but in this fundamental law, these same words are not so to operate, but are to be changed by implication and interpolation, or rather by what Coke calls "divination," guessing, or judicial astrology, into a mere direction to the legislature. Was Magna Charta ever regarded as a mere direction to parliament .' No, it was universally interpreted as addressed to the courts, and to be enforced by them with the most "scrupulous ob- servance" of all its provisions. And if by implication or interpolation we shall construe one portion as addressed to tiie legislature for their direction, where is the rule to stop.^ Parts of tiiis constitution are addressed in words to the legislature, and other portions are not so addressed ; and when the framers of the constitution intended merely to give directions to the legislature, they so declared, and not otherwise. No British court would so construe any clause of Magna Charta as to defeat any of its fundamental principles, or to change them into mere directions to the legislature ; and shall an American court regard as less sacred the prohibitory enactments of the constitution ? Among the canons for construing Magna Charta is the maxim "Verba ita sunt intelligenda, ut res magis valeat quam pereat;" but here we are asked so to construe this provision that it may perish and be treated as a dead letter. Indeed this clause is asked to be expounded as the young interpret dreams, by contraries ; and when our fundamental law saj-s, this traffic " shall be prohibited from and after the first May, 1833, — this is to be construed "shall not be prohibited'' on that or any other day but such as the legislature may or may not think proper to de.signate. The act of December, 1833, it i;^ said, taxes the sale of these slaves, and therefore this clause is not prohibitory. But this act is merely an amendatory and declara- tory statute, passed in pursuance of the auditor's rejjort of November, 1833, to re- move " any ambiguity" m the act of 182."). Under the last proviso of the 5th section of the act of 182.'). citizens of the state who sold slaves as merchandise, contended tliat they were not liable to |)ay the tax. The auditor thought other- wise, and justly so, but to remove all '• ambiguity" he recommends the legislature to " declare the liuhilitij of every person bound to pay the said tax." The three first sections of the amendatory act of December, 1833, merely enforced the collection of the tax authorized by tlie act of 1825, and both acts would embrace a tax on sales of slaves, provided they had been introduced prior to the first of May, 1833. Now many slaves introduced for sale remained, like all other merchandise, for years unsold; and to enforce the collection of the tax already authoiized by the act of 1825, on these lawful sales, was the intention of the first three sections of the act of 1833. The fourth section of the act of 1833, if it be a substantive provision, going beyond the act of 1825, applies exclusively to any " citizen of this state." From the construction of our opponents, it would follow, that by this act, the legis- lature intended to discriminate between residents of the state and non-residents, by imposing upon the former only, and not upon tiie latter, a tax on the sale of all slaves introduced as merchandise after the date of the act of 1833. Such was not the intention of the legislature. The, fourth, section was declaratory only, and was a legislative construction, not of the constitution of 1832, but of the fifth section of the act of 1825. That section commences as follows : " And whereas it is pro- vided, in the fifth section of the act to which this is an amendment, that nothing in that act shall authorize a tax to be collected on the sale of any slave or slaves, sold by one citizen of this state to another citizen thereof; therefore, and for the better understanding whereof, B ««■ XIV Groves et al. v. Slaughter. iiJi) " Be it enacted, That when any citizen of this state, residing permanently there* in, shall bring into this state any slave or slaves," &c. That section, then, upon its face, was enacted solely for the "better understanding" of the 6th section of the act of which it was an amendment, and wilh the view only to obviate all " ambiguity" as regards that section by a legislative construction, applying the act of 1825 to residents as well as non-residents. There is not one word in the act of 1833, demonstrating that the legislature were placing any construction on tlie pro- hibition or prohibitory mandate of the constitution ; much less that they were engaged in the unholy purpose of enacting laws repugnant thereto. The declara- tory and amendatory act of 1833, can well expend the whole force of all its provi- sions, in aiding the collection of the tax authorized by the act of J 825, and applicable only to such cases, as those to which that act could well apply, con- sistently witii the provisions of the constitution. No new tax was authorized by the act of 1833, but only more adequate provisions to insure the collection of the tax authorized by the act of 1825, and declaratory enactments for the " better under- standing thereof." This court is asked to repose upon a legislative construction of our constitution; and to do so, tliey must give a construction to the very enactment in question, never intended by its framers. Construction is to be based upon construction. And not only was this act of 1833 never intended as a construction of the consti- tution, but only of the act of 1825; but such has been its practical inteipretation. The journals of the convention and legislature of Mississippi not being here, I am driven to the printed book of our opponents, consisting of such extracts from journals and messages, as they deem favourable to their cause, but which show that this act of 1833 has never been applied to slaves introduced after the 1st of May, 1833, although it may properly have applied to the cases, comparatively few in number, of slaves introduced for sale prior to the 1st of May, 1833, but sold, as they lawfully might be, in such cases, subsequent to that period. Thus, at page 29 of this pamphlet, is quoted the statementof the auditor. " Amount received on account of slaves sold as merchandise from the 1st of Jan. 1833, to 3d March, 1833, inclusive, . $1065 17 " Do. do. from 4th March, 1833, to 19th Nov. 1833, $2ti25 13J' Does this show, that any of these slaves, thus sold, were introduced subsequent to the 1st of May, 1833 .' The slaves introduced prior to that date, though sold afterwards, were clearly liable to the tax ; and if the tax continued to be collected on all slaves imported afterwards, why this decrease in the revenue from that source, when the sales were increasing ? Why was $1000 collected in two months from these sales prior to the 4th of March, 1833, and but $2625 in nearly nine months afterwards.'' As the importations and soles were increasing so rapidly, why this decreasing revenue.' Can any other reason be assigned than this, that no tax was collected on the sales of slaves introduced after the 1st of May, 1833, but only on such sales, after that period, as were made of slaves before introduced ? But again, our opponents allege that the principal importations and sales were made in the years 1835 and 1836, and consequently the revenue in those years should have greatly increased from that source. Now, at page 45, of their pam- phlet, the auditor's report shows that the amount of tax was as follows ; " Amount received on account of slaves sold as merchandise from 20th Jan. 1835, to 28th Feb. 1835, inclusive, . , f 20 00 « Do. do. from 18th March, 1835, to 4th Jan. 1836, ... 166 40 |186 40" Here is a prodigious decrease in the revenue this year, showing, that the tax must have been confined to the few slaves sold within the period abovementioned, introduced prior to the 1st of May, 1833. On looking at the next year, at page 45 of the pamphlet, we find, by the auditor's report : f t Groves et al. v. Slaughter. XV y there- n, upon pction of viate all the act e act of tile pro- ■y were declara- provi- 25, and ly, con- zed by of the under- *' Amount received on account of slaves sold as merchandise from 6th Jan. 18S6, to 29th Feb. 1836, inclusive, .... " Do. from 1st March, 1836, to 4th Jan. 1837, .... $68 50 82 00 $160 60" Thus, we find the tax reduced the last twelve months to $160.50, and the last ten months to iji82 ; thus continually decreasing, when it should have been so vastly au<;m(>nliiig. No reuson can be assigned fur this, except that the unsold slaves irilroduced as merchandise, prior to Ist May, 1833, became fewer every year, until, in the lust ten months, the sale of four slaves, at less than $1000 each, would have yielded, ut the legal rate of tax of 2i per cent on the sales, more than the whole aiiiuuiit of the whole tax received of $82. Now this was the period witiiin wliich tlie plaintiffs jitiide thnr sales of these slaves, the amount of which sales on 20th Dec. 1836, according to the notes sued on, being $14,875, the tax on which sales alone, would at the lawful rale have amounted to $371, being not only more than the whole tax on all the sales in 1836, but more than on all the sales, by our opponents' own showing, from 20th Jan. 1835 to 4th Jan. 1837; the totality of which was, as we have seeti, but $347.50, which would show taxes te- ceived on but sixteen slaves in these two years, rated at less than $1000 each. Here, by their own book, it is shown that no tax waj paid by the plaintiff on the sales in this case, and that their counsel in this court have been greatly de- ceived in their conjecture to the contrary. From 1st May, 1833, till May 31st, 1837, at least forty thousand slaves were introduced and sold. The average price for working slaves, was then $1000 each, on a credit, and such generally were in- troduced by the traders; and the total price would thus be forty millions of dollars, the tax on which, under the act of 1833, had it applied, would have been one mil- lion of dollars, whereas the amount really received, we have seen, as shown by our opponents, was less than four thousand dollars. If then this tax was payable under the act of 1833, the negro traders (for by law they were to poy the tax,) have de- frauded the state of Mississippi, in four years, of one million of dollars. From 1S30 till 1840, the slaves, by our census, increased 130,000, and as the im- portation commenced chiefly in 1833, and was prohibited in May, 1837, the tax should have much exceeded one million of dollars. Now is it credible, that if this tax were due under the act of 1833, that it would never have been assessed, and that less than $4000, out of one million, would have been collected.' And why was not the prohibition enforced by proper pains and penalties? In 1833 we find the legislature endeavouring to amend the constitution, so as to get clear of this prohibition to a certain extent. The sessions of 'our legislature are biennial. The next ses&ion was in 1834—5, but it failed on account of a disagreement between the two houses, as to the alleged illegal organization of one house, and was prorogued by the governor. The next legislature did prohibit, in May, 1837; the meeting in May, 1837, being of the same legislature which first assembled in 1836. On the 14th Jan. 1836, the following entry appears on the journal of the house: "The committee of revisal and unfinished business, have requested me to report as part of the unfinished Imsiness of last session, the following bills and resolutions namely: ' a bill to be entitled an act to prohibit the introduction of slaves into this state as merchandise.'" Page of Pamphlet, 42. At page 43, (436 of Journal,) Mr. Gholson called up this bill, but no final and direct action was then had on it. In January, 1837, the bill was again brought up, and at page 53 of the Pamphlets, (102 of tlie Journal,) a motion to postpone it indefinitely failed, by ayes 13, noe.>9 56, thus showing a very large majority to be in favour of the bill, although they could not agree on the details until May, 1837, when the present prohibitory statute was passed by the same legislature which convened in 1836. And here, it is worthy of remark, that Mr. Gholson, our Federal Judge, who has represented the state with so much ability, both at the capitol of the state, and of the Union, served throughout all these successive sessions of the legislature, from 1833 till 1837, and took a leading part in all these bills connected with this subject, at all these periods ; namely, the tax bills, the bill to amend the constitution, and tha \^f%mm : ) \\ xvi Groves et al. v. Slaughter. prohibition bill, repeatedly serving as chairman in all Iheae seHtona. Who then more competent to underslnnil ull these bills, and to decide with full knowledge of all these questions? Yet this learned jndge of our federal court was the first to decide this entire question in our favour, as quoted in the Free Trader Gazette, produced by our opponents. Here then is a practical construction of this question, by a refusal of all the authoritifs of Mi88i88ip|)i to demand or receive any portion of that immense revenue, which miijiit have been derived from these sales, had they been regarded as legal, and it is a construction which embraces both points of the controversy, namely, the absolute character of the prohibition, and the ille- gality of the sale, as well as of the inlroduciiim for sale. Must not all then have known, that by declining to reofive tlifse taxes, the state proclaimed the illegality of the sales; and was nut the |)laintiir when lie made the sales in this case, without the payment of any ta.t, a will'ul transgressor of this great constitutional inter- dict ? But independent of this practical construction in our favour, it is settled that an act passed for " the better understanding" of a previous law, and declaratory of its meaning, must be connected with the previous act of 20tli February, 1825, whose true meanini'' it expounds, and be consiiiered as though inserted in that law, and at thai date. In this view of the case, the terms " shall bring" need not be con- strued skull hate brought, although such construction has been repeatedly givinjto prevent a repugnance between a statute and a constitution, or between two statutes, or to obviate injustice or a violation of fundamental principles; but these words "shall bring," in the declaratory 4th section of the act of 1833, must be referred to the 20th February, 1825, the date of the act expounded so as to impose a tax under that law on all sales by citizens (as well as non-residents,) of slaves lawfully introduced after that date for sale before the 1st May, 1833, and not yet sold, or on which sales the taxes hud not hem paid. This was the obvious intention of the legislature, for they were expounding the meaning of the net of 1825, and not in- terpieting the constitution. Thus in the case of Pouget, 2 Price, 381, where the act of 5;{ Geo. 3, c. 33, imposed a duty on hides, of 9*. 4d., meaning that much per 100 weight, but neglecting to say so, when a subsequent act amendatory of the former law, declared that the duty of 9». 4d. siiai.i. bk chargf.able on every 100 weight of such hides, it was decided that the new declaratory provision must be taken as a part of the former law, and as then passed, and operating from that date. The court said, " The duty in this instance was, in fact, imposed by the first act ; but the gross mistake of the omission of the weight, for which the sum expressed was to have been payable, occasioned the amendment made by the subsequent act; but that had reference to the former statute as soon as it passed, and they must be taken together as if they were one and the same act, and the first must be read as containing in itself, in tcords, the amendment svpplicd by the last." Now let the act of 1823, which really did impose this tax on citizens as well as non-residents, be read as " containing in itself, in words, the amendment supplied for the better un- derstanding thereof," by the 4th section of the act of 1833, and the whole diffi- culty disappears. Perceiving the difliculty in which thty would involve the legis- lature, by asserting that they had violated their oatlis, by passing a law opposed to the prohibition or prohibitory mandate of the constitution, our opponents have suggested that when this tax law passed through tiie two houses, they believed that their amendment proposed at the preceding session to change this mandate or pro- hibition into a grant of discretionary power to themselves, had been adopted by the people. If this be so, and the legislature acted under this erroneous impression, how could a law thus passed be regarded as a legislative construction of this clause of the constitution .'' But if this law did authorize the introduction of slaves for sale after the 1st May, 1833, why had the legislature nought to change the man- date or interdict of the constitution into a mere grant of discretionary power, if as is urged they already possessed that power; and if having failed to effect this change in the constitution, they had nevertheless by this law authorized the introduction of slaves as merchandise, could such an act be called a legislative exposition of the constitution .' The framers of our state constitution have withheld all judicial power from the f m W: Groves et al. t , '%ughter. XVil ■ns. Who then I knowle(l((e of was the fir^t to Prftder Gazette, 'f tliis queslion, ve any purtion hese 8iilt'8, had 8 both points of and the ille- >t all tlien iiave d the illegality 8 case, without itutiunal inter- nettled that an cliiratory of its y, 1825, whose that law, and cd not be con- itedly jrivjn, to 'n two Btatutos, ut these words ust be referred impose a tax slaves lawfully not yet sold, or ntention of the 25, and not in- , where the act t much per 100 f of the former ery 100 weight ist be taken as it date. y the first act ; sum expressed ubsequent act; J they must be lust be rfid as *Jow let the act n-residenls, be the better un- he whole diffi- olve the legis- aw opposed to jponents have y believed that andate or pro- idopted by the us impression, of this clause of slaves for nge the man- y power, if as ct this change 1 introduction >osition of the >wer from the legislature. They have declar«d, " the judicial power of thin state shall be vested" in the courts of the state; and that "the poweis of the government of the state of Mississippi shall be divided into three distinct departments, and each of them con- fided to a separate body of magistracy.; to wit, those which are legislative to one, those which are judicial to another, and those which are executive to another. No person or collection of persons, being one of these departments, shall exercise any power belonging to either of the othertt, except in the instances hereinafter expressly directed or pehnitted." If then, as uU admit, to expound a constitution be a judi- cial power, the legislature was forbidden to exercise it, and so was the executive. It was confided to the judiciary, we have their construction ; and an imaginary and conjectural legislative or executive construction is set up in opposition to an expo- sition of the constitution, by the very tribunal to whom its interpretation was con- fided by its framers. If then, a construction by the legislature could be quoted, I deny their jurisdiction; and pointing to the constitution of our state, declare that it is there expressly withheld. 7)ut an executive construction is relied en by our opponents. JVonc such exists ; but what think our three distinguished opponents of executive construction .' Shall I quote their eloquent denunciations of such abuse of power .'' No, I will spare them the contrast with their present argument; but I will say, that the government which deliberately supersedes judicial by legislative or executive construction, has already sunk into despotism. It has combined in one department two out of the three great powers of government; the third will assuredly follow ; and the centralization of all these powers in the legislature or executive, in the opinion of Mr. JetFerson, in his Notes on Virginia, page 195, " is precisely the definition of a despotic government." We shall see in the pro- gress of this discussion, that, by the highest courts of England, no regard is paid to a construction of the laws by the king, or the king in council. But at one time a British judge declared from the bench, " all power centres in the king," and the laws were overthrown by " twelve men in scarlet," taking " royal auricular opinions" for their guide: but for more than a century, executive construction has had no weight with British judges. 1 need scarcely appeal to this court to dis- regard executive construction; nor say to them, that if they do not, the day will have arrived wlien congressional or presidential construction will trample down the high powers of this tribunal in exercising its great constitutional function of expounding in the lust resort the laws and constitution of the Union. The volumes of your decision will be thrown aside, and the exposition of the law and the con- stitution will be looked for in executive messages and congressional enactments. If then there were a legi.ilntive and executive construction on the one side, and that of the highest court of the state on the other, which shall prevail .' To whom is the power assigned by the constitution of the state? And this court will not dis- regard the distribution of powers as therein delegated to the several departments of goveriiiuent. The next question is, can the contract for the sale of these slaves be maintoined, if the clause in question be a prohibition of the introduction fursale.'' Assuming this as established, the clause in question would prohibit the introduction of slaves as merchandise or for sale. The introduction being thus prohibited, if the sale be sanctioned, the clause would read thus: You shall not introduce slaves into this stJrte as mercliandise or for sale, but you, the importer, may make merchandise of them, or sell them to any one as soon as they are landed. Would not such lan- guage be strangely repugnant and contradictory ? Would it not seem as though the convention had designed to render their own provision inoperative and nuga- tory .'' Could the importer sell the thing he was forbidden to introduce for sale ? Could he make merchandise of the very thing he was prohibited from introducing as merchandise .' The object prohibited wus not merely the introduction of slaves, but their introduction as merchandise or for nalc. Now, was the object prohibited, and yet the sale permitted .-* To introduce the slaves with intent to sell is criminal, but to carry that criminal intention into effect, is declared to be authorized and invited by the constitution. Can the intent be criminal, and yet the fulfilment of the evil intention perfectly lawful.' To maintain this position, is to reverse the rule of law and morals, which always regards the execution of the evil intention, as more u 2 XVUI Groves et al. v. Slaughter. ii 1- i) ciiminal than the intention itielf. If the sale crowns and completes the unlawful purpose, if it executes the illegal intention, if it consuuiniates the violation of the law, if it enables the tranggressor to obtain the end and object prohibited, and reap tiie fruits of his transgression, it iniiitt be unlawful. To etlectuate the object and in- tention of the law is tiie grnat rule in expounding laws nnd constitutions. Now the inter-state slave trade, as carried on by traders in slaves as merchandise, was the thing designed to be prohibited. And yet this very prohibited tratKc, by a verb:il criticism on the words, overlooking tiie object of the constitution, is in fact encouraged, if the trader niny sell tiie slaves introduced as merchandise. This court liave said, that a fraud upon a statute, is a violation of the statute; that an evasion of tiio constitution, is a violation of the constitution; nnd is not this con- struction un evasion by the slave traders of the constitution of Mississippi P Lord Coke, ill Heyden's case, 3 Coke, 7, declares, that the true rule in construing sta- tutes is so to interpret as "to suppress inventions and evasions for continuance of the inLschicJ', and pro privato cnmiiiodo, nnd to add force and life to the cure and remedy, according to the true intent of the inukerH of the act, pro bono pulilico." The clauses of a statute are to be construed in their popular signiiication, and this is more pre-eminently the gieat rule in regard to a slate constitution. Who then but an acinic critic, on reading this clause, would doubt as to the object designed to be prohibited ? To whom of the people at large would the subtle distinciiuii occur, that slaves could not be introduced as merchandise or for sale, but that the importer was authorized to sell at onco these slaves that could not thus be introduced for sale.' The terms of the constitution are peculiar and comprehensive. These slaves are not only forbidden to be introduced "for sale," but also "as merchandise." Merchandise means vcndihir, articles. Thest' slaves then cannot be imported us vendililc articles. How then can they lie rendered vendible articles within the state, when they cannot be landed as such within its limits .' In Brown v. State of Mary- land, 12 Wheat. 43S), the question was whether a state could impose a tax upcm the sale by the importer of articles imported into a state for sale. The court decided that tlie riglit of the importer to introduce tlie goods tree of n state tax, did embrace the subsequent right of sale free of such tax by the importer. In delivering the opinion of llie court. Chief Justice Marshall says: " There is no ditference in effect between a power to prohibit the sale of an article, nnd the power to proiiihit its in- troduction into the country. The one woold he a necessary consequence of the other. No goods would be imported, if none could be sold." The mere prohibition then of the introduction of slaves into a country, would render the subsequent sale invalid, and if so, how much stronger is the inhibition of the sale, when the prohi- bition is of the introduction for sale. Why prohibit the introduction for sale, if the subsequent sale is authorized? The sale is the avowed object of the introduction in this case, and without the authority to sell, there would be no introduction for sale, and thus the law prohibiting the introduction would be enforced ; but by the construction of our opponents, the sale is authorized, and the importation for sale so far encouraged and invited. But no such interpretction nmst be given as will defeat the object of the law, or tend to prevent its practical operation. 1st Story's Com. 411, and Chief Justice Marshall declares, 6 (/ranch, 314, that "The spirit as well as the letter of the statute must be respected, nnd where the whole context of the law sliows a particular intent in the legisliiture to effect a certain object, some degree of implication may be called in to aid that intent." The rule is that "The words of a statute are to be taken in their ordinary signification and import, and re- gard is to be had to their general nnd popular sense." Dwaris on Statutes, 702. " The sense and spirit of an act, however its scope and intention, are primarily to be regarded in the construction of statutes, and it matters not that the terms used by the legislature in delivering its commands are not the most apt to express its meaning, provided the object is plain and intelligible, and expressed with sufficient distinctness to enable the judges to collect it from anij part of the act. The object once understood, judges are so to construe an act as to suppress the mischief and advance the remedy." lb. 703, 4, 7, 18. And the author adds : "A statute may be extended by construction to other cases within the same mischief and occasion of the act, though not expressly within the words." If the legalizing of the gale Grovea et al, v. Slaughter. sUt would encourage the introduction for sale, it ii within " the miichief and occasion of the act;" it is within iti "Rpirit," "scope" and "object;" and thurefore as much prohiliited as though " expressly within the words of the act." " No construOtiun of a given power is to be allowed which plainly defeats or impaira its avowed ubjecta." Story's Com. 411. " A statute made pro bono publico shall be construed in such a manner th.it it may as far us possible attain titt r.ntl proposed." Dwar. 722. As to a ilucHtiori vvliul was within the prohibition of a certain law, the court say, " It is by no nieiiriH unusual in construing a remedial statute, to extend the enacting words beyond llieir natural import and etfect, in order to include cases within the same mischief." Dwur. 734, Y and J.'s 196, 215, and the principle is extended to enlarge the poiiuy of u penal statute, not so as to intlicl the penalty, but to avoid the contract. Uwar. 7.52. " Wherever a statute gives or provides any thing, the ccunnion law providfH all necessary remedies and requisiles " Dwar. 6<>2. " Every thing ne> cesiiary to the making it effectual is given by implication." Dwar. 652. 2 Inst. 806. 12 Hep. 130, 131. " Quando aliquid prohibetur, prohibetur et omne, per quod devenitur ad illud." Dwar. 663. " Whenever the provision of a statute is gene- ral, every thing which is necessary to make su(;li provision elfectual is supplied by the f.oimnon law." Dwar. 663. 1 In. 235. 2 lb. 222. Bacon, T. Slat. "What- ever enters into the reason of the law, enters into the law itself." Dwar. 665. Ratio est anima legis. " Laws and acts wliich tend to public utility should receive the mo.st liberal and benign interpretation to etiect the object intended or derlared, ut res inagis vuleat quam periat." Bald. Con. Views, 8. Bl. Com. 89. " Courts will lo to be the law intended, as fully as if ex- pressed in its letter." lb. 9. 1 Wh. 121. 4 Peters, 432. If then, as is obvious, " the object of the law," nanjely to prevent the introduction of slaves for sale, will be frustrated by legalizing the sale, the court " will not suffer the law to be defeat- ed" by ;idoptlng such n construction, but will so ex[>ound the law as to "suppress the mischief and advance the remedy." lb. 9, 11. Co. 72. 1 Bl. Com. 87. The clause which prohibited the introduction of slaves for sale, never could have intended to defeat itself, by legalizing the sale of slaves thus unlawfully introduced for siili', and thus encouraging and inviting the violation of the law, by making it profil.ible to disregard its provisions. But it has been said this prohibition must be strictly construed. Why so? It is not a penal statute, and if it were, it should only be construed strictly when operating on the offender in exacting the penalty ; but when it acts upon the contract, it must be liberally construed, so as to vacate tlie contract, if within the mischief designed to bet remedied, though not within the letter of the law. Thus, it is declared by Blackstone : " But this difference ia here to be taken wlien tha statute acts u|)on the offender and inflicts a penalty, as the pillory or a fine, it is there to be tak(>n strictly, but when the statute acts upon the offence by setting aside the fraudulent transaction, here it is to be construed liberally." 1 Chitty's Black. 60. In a note it is stilted as follows, with a reference to the liigliest authority : "As the statute against gaming, which enables a loser at play to the amount often pounds at one sitting to recover it back within three months; the act also provides a penalty against gaining to the same amount at one sitting. And the court has said in a case where the play was only interrupted by the dinner hour, for the purpose of recovering the money lost, they would hold this to be one sitting, but as against a cnmuinn informer, suing for the penalty, they would hold it to be two sittings." 1 Chit. Black. 60, note, and 2 Black. Rep. 1226. Here, even in a penal law, the same words are construed strictly when they act on the offender, and liberally when they act on the contract. So in this case, were a penalty even annexed to the prohil>ition, the law would be construed strictly when the penalty was demanded, but liberally wlien a contract is sought to be enforced against the spirit or object of the |)rohibition. But how much stronger is the present case.'' If the first point be with us, the constitution prohi- bited the introduction of these slaves for sale or as merchandise, and as no penalty was attached to the prohibition, would not the provision be enlirehj inoperative, if the contract of sale could and must be enforced by the judicial tribunals.' The XX Oro9et et al, v. Slaughler» 11 object of tha conititutional prohibition wai to render the trafflo unlawftil, ao that no contract could be enforced in violation of the prohibition, but the penal aana- tione by fme and impriioninent might well be lef\ to aubieiiuent legielation. In the cdie of the U. 8. Dank v. Owen«, 2 I'etere, 537, it ie expreaily decided by thia court, that law* must be atriutly conitrued when the penalty it exacted, but libe- rally in vacating the contract. The doctrine which repudiateii contract! againit public policy or good morali, long preceded the common law of Kii^land, and wai incorporated into that ayi- tem in in the civil law. In the note 8. to 1 Fonblunqiie's Kqtiity, Book I. lec. 4, page IHtf, it i* etuted, " Pacta quu) contra legeit conititulionoii<|ue vel contra bonoa raorei niillam vim habere, indubilati juria est." Code, lib. 2, tit. 3, 1, 6, Thia rule of the civil law ie drawn from the pririciplee of universal juhUcb; which, aim- ing ut tliH prevention of wron|^, proliiliitH u(rreeiiientM which would lead to or tncou- rage it. To introduce, then, HiaveH into MiMMJiiHippi for sale, waa prohibited by the coiietilution, and wan therefore wroiij;, luiluwful and immoral; and none will deny, that to ieijalize the contract of Hale for mluveii tliim unlawfully introduced, would encourage tiie introduction for Bale; ami if ho, upon llie authority above tpioted, luch contract wuuld be void. " ConHiderationn agaiiott the policy of the common law, or ag.iiiint the proviHions of a Htatute, or iigainsit the policy of jumice, or the rule* and claims of decency, or the dictaten of morality, are void in law and equity." lb. note Y 189. And here I maintain, that where a contra(;t ia nguimit the policy of a state, or against good moraln, or delrimi'iilai to the public interest, or iigainst the peace, security or welfare of u state, or tending to encourage a violation of the laws or policy of a state, or the prohibition of a statute, it Ih void; and if it is with- in the spirit, scope or intention of the act, (though not within its words,) or within the object designed to be promoted or iniHciilef suppressed, it is also void; and the most liberal construction will be given to the law, and every fair im|ilieution \v .11 be allowed, to prevent a defeat of tliu full ojieration of the statute. Thus it is declared by the court, in the leading cnse of ^Iilchell v. Smith, Ist Din. 110, 4th Yates, 84, that contracts are void which " tcnil lo defeat the Ivgislativr. proriniiins for the security and peace of the community, though not made void liij ntututcs;" or which tend ",}y tlioHt* lawn, nor I'inliriiced witlim ii*«ir pruviriionii, on Ihu ((round tliiil to (•nlorci* nuc.ii coniriirlH would bt< "coiiirarv lo ihf spirit lit lliH liiiiikrupt liiw», " mid tliiit by hucIi c nrorceniiMit "(Mim of tlio nff.ii ftt ot' the iMiikriipt l.iWH iri>:ilil liv (liJ'fiUtil' by prt!v«ntiiit(y'M// exantinutioii ol'ul . ink- ruptM 1)11 oulli. In (.'ruii{ v. Htute of MiNHouri, t >'i-tt>rH, 110, it waH dc xlcd bj tluM rourt, Ibiit It nolit )(ivt*'|)ii< couri in tbii* caMt!,diit't JiiHticf iM;irHliall uskt'd till' toilowin^ i|iii'stion : " lli i '.n Ixm.ii^ or circulation ot' Cfrtiticales of thin or liny other dfHiTiptioii bdiu ^iruliiluteu by a niatute of MiMRonri, could a Huit liaVH bt'fii inaintaiiifd in tilt: CO tto '* that Htule, on a nott- ^ivl■ll in RoiiHiderntion of tlic iindiibitcd ciTtilicf '".' It ii co. .. not, are tlif pidbibiliond of tli« ronnlilution to be lii'ld It.ss nam i lliii'i Mi' lo of a ntal • law.'" And if MUch a claUMe in tb»' con- stitution ot the Union n!<.iitfd void n ciuitract for the loan of tlnme certificates, how iniicii BtroiiHHr the implication u'raiittt the Hale in this caHe? And here, upon the first branch of Ihe ipiestion. let me auk, if the laniriiajre in a statute of Mindis- Mi|)|)i "Hliiill 1)0 proliibiltd from and after the Ist of May, 1H:J3," would be a pro- hibition, iir<> Uie Hunie terinii and woida "of the constitution to be held leHit sacred than those of u state law.'" In the case of Hunt v. Knickerbocker, 5 John. 327, it was decided, that a con- tract for tliB sale in r>n:w York, of lickets in a public lottery of Connecticut, antho- rizi'd by the laws of that stale, was illejral, and the money not recoverable, though a valiiiiblu consideration may have passed to the det'endant, because it was against the policy of the law of New York, I'orbiddinir prirulr lotteries. Here was a case clearly not within the words of the act, but it was reijarded njrainst the policy and spirit ot" the act, "and to lej^ali/.e the sale would be jiroductive of many of the mis- chiet's contemplated by the lejriHlaliire ;" and the court also say that "a contiact wliicii in itn erjxution, contravenes the policy and spirit of a statute, is equally void as if m:ide us against its positive provisions." In Sharp v. Teese, 4 Halsted. !J52, the court held, that "a note given by an insolvent debtor to two of his creditors, in consideration of their withdrawinir their opposition ti) his discharire under the insolvent act, is void, it being against the policy of the insolvent law." In this ca.se the debt tor which the note was given, was justly due, and there was not one word in the law declaring such a contract void, lis will appear in the reasons given by the court, at page 354. They say the policy of the law favours a full iiiiil fair disclosure, and equal division of the pro- perty among all the creditors, and add, '-any transac on or arrangement wliich teii'ls to defeat either of these purposes, is inconsistent, with the policy of the law. ihit .1 •iii'n, to contravene tlic poli< of a jiuhlir statiitr, is illegal. Nor is it neces- Hary I'l m"!' r it so tli ' j statute should contain un express prohibition of sucit ■iti i\ ■'. ' always tonlains an implied prohibition." Tlie same court decided that no action can be maintained on a contract which "contravenes the policy of an act of congress." '» Hal. 80. The court say " many contracts which are not atruinst moral itt), am still void as being against the maxims of sound policy;" that "if the consideration be against the public policy, it is in- suflicienl to support the contract;" "it is a general principle, that all obligations for any matter, operating against the public policy and interests of the nation are void." See also 2 Southard, 75(i, 7W3. In Nichols V. Ruggles, 3 Day, 145, it was dofided, that " a contract to reprint any literary work in violation of a copy-right secured to a third person is void: and the printer who executes such contract, with a knowledge of the riglil^ of such third peroon, can recover nothing for his labour." The contract between the two XXll Groves et al. v. Slaughter. persons in this case, was regarded as repugnant to the policy of the copy-right law of congress, though nothing in that act avoided such a contract. And in Mar- chant V. Evans, 8 Taunt. 142, it was held, that no recovery can be had for print- ing a newspaper whose publisher does not first make the affidavit directed by the act, though the act does not avoid the contract. And in Stephens v. Robinson, 2 Crotn. and Jer. 209, the court decided under the same statute, that tliete could be no recovery by the printer, where the affidavit as to the proprietorship was false, either for work and labour done, for money paid, or even " for printing and circulating cards advertising the paper." The court said, if we permitted a recovery, it would defeat the policy of the law, by enabling "irresponsible persons to stand forward as publishers," instead of the real proprietors. See Roby v. West, 4 N. Hamp. 285. In the late case of Spurgeon v. M'Elwain, 6 Ohio Rep. 442, it was decided that " keeping nine-pin alleys in a town, by a keeper of a public house, being unlaw- ful, the (carpenter,) builder of such alley cannot recover therefor on general as- sumpsit." There it was urged, as was the fact, that the carpenter had no interest in the alley, or in its profits, keeping, or use, and there was not a word in the law avoiding the contract, or declaring the huilding such a house unlawful, but only the keeping of it. The court said, "The statute forbids under a penalty, any tavern keeper, or retailer, from keeping or permitting to be kept, a nine-pin alley, in the building occupied for that purpose ; can a carpenter, knowing the object, recover the price of erecting it.'" " The principle is of general application, that contracts contrary to sound morals, public poliry, or forbidden by law, will not be executed by courts of justice." And upon these principles, and the policy of this statute, the court decided that there could be no recovery, because the plaintiff had violated the policy of the law in building a nine-pin alley for a third person, in a state where no such alley could be ke/ft, and tiierefore could not recover : — as here in our case, the plaintiff had vio- lated the policy of the law, in selling these slaves in a state where they could not be introduced for sale, and therefore cannot recover. The keeping the slaves for sale in the state is an adherehce to the unlawful intention with which they were introduced, and when kept till sold, the very act of sale is a continuation and con- summation of the unlawful purpose, and aggravation of the guilt of the offender; yet it is asked to be received as perfectly lawful, and worthy the sanction and encou- ragement of judicial tribunals. Nor would the pretended misapprehension of the law avail the plaintiff, for in the case of Craig v. U. S. Insurance Company, ' Peters' C. C. R. 410, Justice Washington of this court, said, in deciding against a contract of insurance on the ground that it was against the policy of the law, " I mean not to impute crime, or even intentional impropriety, to either of these parties. I have no doubt t.'iat they acted with the most perfect innocence, mistaking the law, as many legal characters did, at a later period than thut when this contract was entered into." In Billing v. Pitkin, 2 Caines, 146, it was decided that " an action will not lie upon a contract to pay over half the proceeds of an illegal contract, though the money arising from it has been received by the defendant." This was a case of a sale by an agent of land in Pennsylvania under a Connecticut title, which sale we have seen was void, as contrary to t'le policy of the law. The principal received the money on the sale, and refused to pay the agent the portion he was to receive for effecting the transaction, but a recovery was refused and the defendant per- mitted to retain the money. The court said : " It is too salutary and well settled a principle to be in any measure infringed, that courts of justice ought not assist an illegal transaction in any respect. To sustain the present action would be in some degree ratifying, countenancing, and sanctioning an illegal contract." " If the consideration money for this pretended claim had been paid to the plaintiff, neither a court of law, or equity, would have aided the defendant in recovering it from him." By this doctrine, even an agent who receives money for a principal on an unlaw- ful sale, can retain the money, the contract to pay the money to the principal being void, as growing out of the unlawful sale, yet such a contract is distinct and inde- pendent of the original transaction, and in every respect collateral. In Parsons v. « t * ^. * Groves et al. v. Slaughter. xxui Thompson, the sale of an office not within the words of the statute, was declared void, Ihdiigh in the language .f Lord Loughborough, " it was the practice" to sell such otfices. 1 Hen. Black. 322, 324. In Bryan v. Lewis, 1 Ryan &■ Moody, 386, it was stated as a general rule, that where, to sanction the sale of goods, " would be attended with the most misciiievous consequences;" such sales will not be up- held by the courts, though no statute declares the sale void. See 7 Mas. 112. In Fennell v. Ilidler, 6 Barn. &. Ores. 406, it was decided, that a horse dealer could not recover the price of a horse sold by him on Sunday, such sole being con- trary to the policy and spirit of the act, declaring that no persons " siiall do or exercise any worldly labour, business, or work of their ordinary calling, on the Lords day." And see 4 Bing. 84. 2 C. & P. 644. 12 Moore, 266. A mercer who sells ribands to a candidate for parliament, if he knew that the candidate in- tended them as presents for voters, which is forbidden by law, the mercer could not recover the price. Richardson v. Webster, 3 Car. &. Payne, 128. There is no statute forbidding such sales to candidates, out as to sanction the sales would en- courage candidates to violate the law which prohibits them from making presents to voters, such sales are held void. See 3 Taunt. 6. 1 Ashmead, 68. 9 Vermont, 23, 310. 7 Greenleaf, 113. In Fales v. Mayberry, 2 Gall. 560, it was decided, " that no action can be maintained against master and part owner of a ship engaged in the slave trade by his partners in the concern ; nor against an ag-cnt with the proceeds in his hands;" nor even by an assignee of the note growing out of such transactions; and " if a siiip be sold in a. foreign port, to evade a forfeiture incurred in the United Slates, no action can be maintained for the proceeds." Here the offence had been committed long before the sale, by the voyage for slaves, from Boston to Georgia, thence to Africa, and thence with the slaves to I he West Indies — after nil ichich, the ship was sold at St. Bartholomews. The sale was subsequent to the illegal voyage, but as it was a consummation by the plaintiff, as in this case, of the oricrinal unlawful purpose, the sale was held to be unlawful, though there was no law declaring it so, and there could he no forfeiture at St. Bartholomews ; and besides the case did not proceed on a failure of consideration, for the vessel was delivered and held under the sale, but upon the illegality of the voyage preceding the sale. In Morel V. Legrand, 1 Howard, 150, it was decided, by the high court of Missis- sippi, that a sale by a settler, of his improvement, made on the public lands, in ex- pectation of a pre-emption, was void, as contrary to the policy of the intrusion act of congress, though nothing in that act df-clared such sale to be void. The opinion of the court was delivered by Chief Justice Sharkey, the same judge who decided in our favour in this case ; and the case is chiefly cited as evidence of the impar- tiality atid independence of the court, for, in giving judgment against the sale of this inchoate prospective pre-emption, the court was pronouncing an opinion against their wi.shes as citizens, and against a system of sales by settlers, univer- sally and deservedly popular in the state of Mississippi In Blachford v. Preston, 8 T. R. SO, it was held, that " a sale (by the owner) of the command of a ship em- ployed in the East India Company's service, without the knowledge of the com- pany, is illegal ; and the contract of sale cannot be the foundation of an actif)n." Lord Kenyon, Chief Justice, said — " a plaintiff who comes into a court of justice to enforce a contract, must come on legal grounds ; and if he have not a legal title, he cannot succeed, whatever the private wishes of the court may be. In this case the plaintill's have relied on the practice that (as it is said) has so long prevailed of selling the commands of ships ; but that practice is in violation of the laws and regulations of the East India Company." Lawrence, Justice, after stating the sale, said — " subsequent to this, the East India Company came to a resolution, for the purpose of abolishing the practice of selling the commands of ships, and of making compensation to some of the officers in their service, who had paid for their com- mands — hnt this resolution was not made in approbation of the practice that had prevailed before ; but feeling that they were hiamcable for not having put a stop to it sooner, they came to the resolution of abolishing the practice that had obtained in defiance of the by-laws of the company." This case shows how unavailing any practice, however long established and universal, is, to give validity to any con- tract repugnant to the policy of the law. XXIV Groves el ul. v. Slaughter. i i Wlienever the introduction of any nrticle into a country, generally, or for sale, is proliibited, or its use or inanuliicture forbidden, or its offer for sale — in all these cases the sale is illegal, although the law does not, in terms, prohibit the sale. We have seen that the maxims applicable to this question were borrowed from the civil law, as principles of universal justice. One of the most distinguished writers on this subject says — " In certo loco merces qumdam prohibitne sunt. Si vendan- tur ilii, contractus est nullns verum si niet.x eadeni alibi sit vendita ubi non erat inturilkta, emptor condemnabitur, ([uia contractus inde ab initio validiis fuit." Huberus Tit. de Conflictu Legum, Vol. II. page 539: which, us translated, reads — " In a certain place the introduction of some articles is prohibited. If lliese are sold t/icrr,, the contract is voiil. But if the same articles are sold elsewhere, where their introduction is not interdicted, there the purchaser shall be condemned to pay the price, because the contract was valid from the beginning :" and Lord Mans- field, in 1 Cowper, approves this doctrine, and applies it to render void the sali , in Engliind, of goods on which the duties have not been paid. The same doctrine is laid down in Krskine's Inst. 478, as follows: — "Things, the importation or use of which is absolutely prohibited, cannot be the subject of commerce, nor, consequently, of sale. But where the importation of particular goods is only burdencid with a duty, a contract may be effectually entered into concerning them ; for though the law enacts penalties, if they should not be regu- larly entered, it allows the use of them to all the community, and so leaves them as a subject of commerce. (Karnes, 40.) Yet even in the sale of run troods, no action for damages lies against the seller lor non-delivery, if the buyer knew th^t they were run " Home, 34. Ersk. 478. Here the law is distinctly laid down by those two great jurists, Home and Erskine, that where the importation on use of any article is proliibited, the sale is void. In 1st Kames' Equity, 357, referring to the Scotch decisions on sales of smug- gled goods, he says, '• they are not sustained at present, nor, I hope, will be ;" in which he has been fully supported by the subsequent decisions in Scotland. In speaking of this subject, this able writer says — " The transgression of a prohibitory staiute is a direct contempt of legal authority, and, consequently, a woral irrong, whicii ouirht to be redressed ; and where no sanction is added, it must necessarily be the purpose of the leirislatnre to leave the remedy to a court of law :" and the author adds, that in such cases the true mode " of redressing the wrong, is to void the acty Here we find this great jurist avowing the true principle, that there is no distinction in the rule for enforcing contracts, between malum prohibitum and malum in se. And if, in a despotic or motinrchical government, it be a '^ moral tcronii'' to violate a prohibitory law, how much more strongly should this principle apply to laws proceeding, not from a monarcli's will, but from the free consent of the governed, from the people of a slate themselves. To violate such laws is not only a " moral wrong," but an assault upon the sovereignty of the people. We find here, also, a full answer to the difficulty suggested as to the want of any sanc- tion to this clause. The true sanction in all such cases, we here see, " is to void the a^.t." This subject is discussed with great ability by Mr. Bell, Professor of Law in the University of Edinburgh. Having treated of contraband of war, he then ])roceeds to consider "contraband of tnidv. or snmgirling contracts." 1 Bell's Com. 306. He says — " The contempt and breach of those laws is called smiigulliifr ; the goods as to which the evasion is attempted, coiitnihand ; and the great rule is, that no action is maintainable on the contract^ or for the price of the goods piirrhuscd in contempt of those laws. In the one case, 'Potior est conditio possidentis;' in the other, if an action is brought for nmney, ' Potior est conditio defendentis.' " " When the goods have come into this country, the criterion of decismn to sustain or dismiss the action, is knowledge of the contraband natuie of the goods. The decisions have varied; but it would seem that when the goods are prohibited, no bona fides can justify the contract: that when the goods are not prohibited, but may lawfully be sold, provided the duties have been paid, action is denied where the party knows the duties to be unpaid : that after the goods are in the circula- tion of this country, the bona fide purchaser has action for the delivery, although Groves et ah v. Slaughter. XXV smuggled. And he gives it as the settled law, that there can be no action " on bills for the price of contraband goods," the bills " being in the hands of the origi- nal parties, or of their trustees." 307. in 3d Brown's Synopsis Scotch Cases, page 1437, it is laid down au the settled law, that although there can be no reco- very of the price on a sale " of smuggled goods," " in a question between the £m- porter and jmrclinscr," yet other bona fide vendors can recover " where the goods said to have been smuggled have passed from hand to hand on shore." Having shown that th^ law in Scotland and upon the continent of Europe is in our favour, let us now examine the English cases. Law v. Hodgson, 2 Camp. 147, which has been repeatedly recognised in England and America, was an action by a brickmaker for the price of certain brick made and sold by him, and used and retained by defendant, in a house erected by him. The defence was founded solely on the allegation that the bricks were not of the size required by the statute. 17 G. 3, c. 42, sec. 1, vol. 14. The first section of this act declares, that " all bricks which shall be made for sale in any part of England, shall, ir/ic/i burnt, be not less than 2J inches thick and not less than 4 inches wide." The 2d section enacts, " That if any person shall make bricks for sale of less dimensions, he shall forfeit the sum of 20 shillings for every 1000 bricks so made." The defendant contended that the act only prohibited " the making of smaller bricks, under a penalty, but did not declare contracts void." That even if liable to the penalty for the offence of making bricks, the subsequent sale was valid. He argued the impossibility of compliance with the statute, "as bricks made in the same mould, shrunk very dif- ferently in the burning," and that the "honest intention of the brickmaker was not to be doubted in the present case;" and that the defendant having " himself select- ed" and used the bricks, could not make the objection. Lord Ellenborough said : " The first section of this statute absolutely forbids such bricks to be made for sale. Therefore, the plaintiff* in making the bricks in question, was guilty of an absolute breach of the law } and he shall not be permitted to maintain an action/or their value." On re-argument, the court adhered to its decision, declaring " that the best way to enforce an observance of the statute, was to prevent the violation of it from being profitable." There, the offence was the making the bricks for sale, not the sale ; and the offence was complete when the bricks were thus made, and the sub- sequent sale, just as distinct a transaction as in this case. There too, the bricks had been selected and used by the defendant, and constituted part of a house, which was his property, and could be sold by him. It was also a very hard case, which this is not; but, as the making the bricks for sale was illegal, therefore, the subse- quent sale was avoided, as here the introduction for sale was illegal, therefure the subsequent sale was void, both sales having been made by the offender himself. The additional reason for the decision, was that, " the best way to enforce an observance of the statute, was to prevent the violation of it from being pro- fitable." Brown v. Duncan, 10 B. «fe Cres. 93, Lord Tenterden says: "These cases (breaches of revenue regulations) are very different from those where the provi- sions of acts of parliament have had for their object the protection of the public. Such are the acts against stock jobbing, and the nets against usury, it is different also, from the case where a sale of bricks required by act of parliament to be of a certain size, was held to be void, because they were under the size. There the act of parliament operated as a. protection to the public, &s well as the revenue, securing to them bricks of the particular dimensions. Here the clauses of the act of parlia- ment had not for their object to protect the public, hut the revenue only. Neither is this one of that class of cases where an attempt is made to recover the price of pro- hibited goods." Here the case of Law and Hodgson is recognised and distinguished from the class of breaches of revenue regulations, and is classed with those cases, " where an attempt is made to recover the price of prohibited goods." Even then, if the sale of goods imported and on which the duty is not paid, were lawful, be- cause the object in that case only was to guard the revenue, we see it is entirely different from the case of the sale " of prohibited goods," where revenue is not the XXVI Groves et al. v. Slaughter* object, but the intention is " to protect the public," by forbidding the introduction of such goods, and especially if the introduction for sale is prohibited. In Little v. Poole, 9 Barn. t& Ores. 192, where the law directed in the sale of coals, that " the vendor of coals, by wharf measure, deliver a ticket to the carman employed to cart the coal, and the carter is to deliver it to the purchaser," under a penally for non-delivery, the sale of the coal was held void ; because, such ticket did not accompany the delivery of the coals, although the sale was fair, the coals of the proper quality and measure, and although there was nothing in the act declaring the sale void, and the defendant had received and still retained the coals. Here the coal was property, and retained as such, and yet the sale was avoided ; and the case of Law and Hodgson again expressly recognised, and in both cases the sale was avoided by implication only ; there was no forfeiture of the property, and nothing in the statute declaring the sale void. In Forster v. Taylor, 6 Barn. & Adol. 887, the question arose under the act which declared that, " every dairyman and farmer, who shall pack any butler for sale, shall pack the same in vessels (marked aa prescribed by law,) and shall brand his name on the vessel and butter, upon penalty for every default of five pounds." The court admitted the sale was fair and the weight proper, and the butter sold by the farmer received and retained, yet the sale was declared void ; because, the vessel was not marked according to the direction of the statute; and although there was not one word in that statute prohibiting the sale, it was decided, that the act " indirectly prohibited" any sale of butter in vessels rot properly marked ; and the court, after approving Law and Hodgson, and reviewing the cases, and referring to those "arising out of transactions connected with smuggling," declared the " general principle" to be " that where the provisions of an act of parliament have been infringed, no contract can be supported arising out of it." The court aftirni the doctrine previously laid down, 3 Barn. & Adol. 221, that where the contract " is expressly or by implication forbidden by the statute or common law, no court will lend its assistance to give it effect." In Tyson v. Thomas, 1 M'Lellan & Young, 119, sale of corn by the hobbet, an unlawful measure, was declared void, although the court admitted, " that the statute had not been acted on for nearly a century," and that there was " great in- convenience from enforcing it;" but the court said, " no act of parliament is lost by desuetude;" and the court annulled the contract of sale, although they declared, "There is no doubt these parties dealt bona fide with each other in making the contract." And this case, sustained by many others, is also a complete answer to the argument urged on this as well as the first branch of the case, that this pro- hibition as to slaves, was " inoperative," or had not been enforced, or was a "mooted question" in Mississippi, and that the plaintiff acted in good faith. No one of these statements as to the plaintiff in this case is correct, but were it other- wise, we perceive how unavailing it would be to uphold this contract. In Billiard v. Hayden, 2 Car. & Payne, 472, it was decided, that " If the im- portation of certain goods be prohibited, and the plaintiff sell such goods in this country to A., who endorses a bill of exchange to him in payment, the plaintiff cannot recover on that bill against the acceptor, although there was no evidence that the plaintiff was the importer of the prohibited goods." That is a much stronger case than this. It would be the same as if Slaughter, the importer, had left these slaves with some commission or auction house in Mississippi, and they had sold the slaves in their name, and taken the acceptance of some other house for the price, and endorsed it to Slaughter, and the suit had been against the ac- ceptors, as in the above case " by the plaintiff, aa endorsee." That case was the sale in England, of silks imported from France, against the prohibition of such importa- tion by the statute 50 Geo. 3, c. 55. The plaintiff contended, "the statute only prohibits the importation of foreign silk, and it does not at all appear, that the silks were imported by the plaintiffs. The statute does not make the sale of them void ; and as there is no evidence that the plaintiff imported them, they are entitled to recover on the bill." Abbott, Chief Justice: " This transaction arose before the late act, the statute of the 50 Geo. 3, c. 55, prohibits the importation of all foreign silks, and I have no hesitation in saying, that if these were foreign silks, and the > m > Groves et at. v. Slaughter. XXV 11 jction hie of irtnan ider a (ticket }al8 of le act Icoals, lided ; I cases aerty, bill was given in payment of them, the plaintiff cannot recover." The reporters, in their note, refer to this " late act," by which the former act, prohibiting the im- poitatiun of foreign silks, was repealed, and say : " Although this case is thus ren- dered less important, as to foreign silks, it appears equally to apply to any other species of goods, the importation ok which is pkohibited." The court as well as the reporters, place this case upon the sole ground, that if a statute " prohibits the iinportalinn" of any article into England, its sale there when imported is void. Here also it was urged, that the importation only was prohibited, and not the sale ; but the sale was regarded as impliedly forbidden by the prohibition of the importa- tion. In Langton v. Hughes, 1 Maule & Selwin, 393 ; " Where the plaintiff, a drug- gist, alter the 42 Geo. 3, c. 38, but before the 51 Geo. 3, c. 87, sold and delivered ginger and other articles, knowing that they were to be used in brewing beer ; held, that he could not recover the price." By the act of 42 Geo. 3, under which the question aroiie, the brewer is prohibited from " using any thing but malt and hops, in the brewing of beer;" and the act of 51 Geo. 3, c. 87, prohibits the sale of such drugs to brewers. It was contended, that although the sale under the last act would be void, it was not so under the first, as it did not prohibit the sale of the ginger to the brewer, but only its use by him in making beer. They contended that ginger was an innocent article, and might be lawfully bought and sold, and that the improper use subsequently made of it by the defendant, did not avoid the previous sale. Rut the court held, that as the law was for the protection of the public health, and as to uphold such a sale would be " against the policy of the law," that the sale, though not prohibited expressly, was unlawful, as tending to en- courage a violation of the law. In 3d Vesey, ex parte Mather, it was decided, that in the case of a bill endorsed to a broker, in consideration of money advanced by him, in effecting an illegal insu- rance, no recovery by the broker can be had against any of the parties to the bill. The cases of Faickney v. Reynous, and Petrie v. Hannay, so much relied on by the other side, but now so entirely exploded, were cited in this case ; but the Lord Chancellor said : " I am perfectly aware of both the cases cited, but I cannot per- fectly accede to them. What is called a consent in these cases, is a confederacy to break a positive law. I have often had occasion to think of these cases upon lottery insurances, &c., and it never occurred to me to be possible to state a dis- tinction between them, and a case repeatedly adjudged; if a man is employed to buy smuggled goods, if he paid for the goods, and the goods come to the hands of the person who employed him, that person shall not pay for the goods." Here, in this case, the broker was not the insurer, he made no illegal contract, but he ad- vanced the money to the man who did make the illegal insurance; and yet he could not recover that money so advanced. That case was two removes from the direct illegality, and yet, as it grew out of it, there could be no recovery. First " the voy- age from Ostend to the East Indies," was declared to be illegal; and therefore as a consequence, the insurance of that unlawful voyage was illegal, not as declared so by statute, but as contrary to the policy of the law forbidding such voyages. Then came the contract to pay the broker the money advanced by him, to effect the in- surance, the broker having no interest in the voyage or insurance, but being merely a lender of money ; but this loan and second contract, being connected with the insurance, was void, and there could be no recovery. Is there not a more direct connection between the act of sale in this case by the original offender, and the unlawful introduction of the slaves for sale, than in the advancing of the money in this case by the broker ? and yet it could not be recovered as against the policy of the law. Here, too. the Chancellor put a case, which he declares has been " repeatedly ad- judged" as to smuggled goods, which is directly in point. A. employs B. to buy smuggled goods; B. with his own money, purchases the goods for A., and A. re- tains them ; yet B. cannot compel A. to pay for the goods thus purchased at his instance, and for his benefit, and received, and retained by him. Why is this ? The purchase of the smuggled goods is illegal, and therefore the person advancing the purchase money for another, cannot recover the money so advanced, because in XXVIll Groves et al. v. Slaughter. that case, as in this, to sustain sucii contracts, would be to encourage the smug- gling of goods into the country, and would therefore be against the policy of the law. The ground on which insurance on cargoes illegally exported is void, is stated in 11 East. 502. That was an insurance on naval stores, and the objection was, that under the act of 33 Geo. 3, c. 2, naval stores were forbidden to be exported, but the act did "not avoid the contract of insurance." The court said, "the sta- tute having made the exportation of and trade in naval stores contrary to the king's proclamation illegal, implicdiij avoids all contracts made for protecting the stores 80 exported." In Bensily v. Bignold, 5 Barn & Aid. 335, where the act directed every printer of every book or paper to affix his name to it, under a penalty of £20 for every de- fault, it was decided that the printer who had not complied with the law, could not recover for the labour furnished or for the paper used in printing the book. It was urged, as was the fact, that the law contained "no prohibitory clause whatever, but merely a particular regulating clause protected by a penalty ;" and upon the ground of a distinction, also, "between a prohibition and a penal enactment," as well as upon the ground that the act was not malum in se, and " that there wao no clause whatever making the contract illegal ;" it was conten<'.ed, that they were en- titled to recover. It was especially urged, that they could recover tor ' the paper provided by them for printing." But the claim was overruled both as to the labour and materials. The court said, as to statutes, " if there be an omision to do the thing required, it is not any excuse that the party did not intend to commit a fraud." " The public have an interest that the thing shall not be done, and the ob- jection in this case must prevail, not for the sake of the defendant, but for that of the public." Now the prohibitory clause in the constitution of Mississippi, is in- serted " for public purposes ;" the frainers of that instrument considered " that the public have an interest that the thing shall not be done ;" that is, that slaves should not be introduced as merchandise or for sale ; and if so introduced and sold by the importer, must not the objection to the sale prevail, not for the sake of the defend- ant, but for that " of the public .-''' And it is the strongest possible case when the contract is against the prohibitory policy of the constitution of a state. The court also declared that "the distinction between mala prohibita and malum in se, has been long since exploded. It was not founded upon any sound principle, for it is equal- ly unfit, that a man should be allowed to take advantage of what the law says he ought not to do, whether the thing be prohibited because it is against good morals, or whether it be prohibited because it is against the interest of the state." If, then, the introduction of slaves into Mississippi from another state, as mer- chandise and for sale, would be malum in se, none will maintain that the sale of the slaves by the guilty transgressor would be valid, and yet it is just as valid where the importation is malum prohibitum, as where it is malum in se. It has been de- cided in England, that no action can be maintained for the copy-right, or for the loss or destruction of the book by another, or for the sale or for the profits of the sale, in whole or in part, or for the printing or labour furnished in printing any book of an indecent or immoral or libellous character, or "injurious to the govern- ment of the state," or " •tlanderous," or for caricature prints or pictures of a simi- lar character, 2 Car & Payne, 136 to 171 and notes; also, 198 to 201 ; 2 Mer. 437; 7 Ves. 1 ; 4 Esp. 97; 2 Camp. 29; 7 D. & R. 625; 6 B. & C. 173. There was no prohibitory statute in these cases, but all such contracts were held void as against the policy of the law. In Wheeler v. Russell, 17 Mass. 258, it was decided, that "no action lies on a promissory note, the consideration whereof was the sale of shingles, not of the size prescribed by the statute." "The statute provided, that no shingles under certain dimensions shall be offered for sale, in any town in this common- wealth." The act was passed in 1783, and had remained "inoperative" until 1821, the date of this decision. It was contended for the plaintiff, that there might be "an offer to sell," by which alone the penalty was incurred, and "yet no sale be made;" " the offer to sell must precede the sale, and is a distinct and separate act. The sale might follow or might not. Why then, should the previous commission ) ,W=^- Groves et al. v. Slaughter. XXIX le smug- ly of the fs stated lion was, pported, J the sta- le king's stores of the offence, by which the penalty is incurred, vitiate the subsequent sale ?" The arguments in that case are the same now urged, tiiat the introduction for sale must" precede the sale;" that is, the thing forbidden and that the " previous com- mission of this otfence" does not "vitiate the subsequent sale," which is "a distinct and separate act." An actual sale is no more within the words ''offer to sell" than it is within the words "introduce as merchandise and for sale;" and in both cases the oA'ence, in a technical sense, may be completed, and no sale take place; but, although such technicalities and adherence to tlie letter against the spirit of the act, may be the rule on indictments for the penalty or offence, yet we have seen it is far otherwise, when the court acts upon the contract, which is always void, though not within the letter, if against the policy of the act. And here let me examine the case on which the counsel rely on the other side of Toler v. Armstrong, 11 Wheat. 238. The facts were, that Toler, the plaintiff in the court below, paid a sum of money, for which (he suit was brought, for Arm- strong, namely, the appraised value of certain goods of Armstrong, in which, or the importation of which, Toler had no interest or concern, and which goods were condemned to the United States as illegally imported in time of war, by a pre- tended and collusive capture, and Toler paid the appraised value of the goods thus condemned, and other charges, and the expenses of the prosecution, for Armstrong. When the goods were libelled by the United States, they were delivered up by them to the claimant, De Koven, on a bond for the appraised value, Toler be- coming responsible for the appraised value in case of condemnation ; and they were delivered afterwards to Armstrong, on his agreeing to pay Toler such sums as he would be compelled to pay for Armstrong. By a reference to the Appendix to 'I Wheat. 51, it will be seen, that this sale for the appraised value on such bond as was given in this case is made by the marshal, and is the legal and proper me- thod. Now, if a man is the owner of certain good:* illegally imported, is that any rea- son why a just and legal contract, to be refunded the money which he might have legally advanced on account of other goods of another person under a lawful con- tract, should not be fulfilled? Surely not; for the offence of Toler, as to his goods, was a distinct offence, and unconnected with the other offence committed by Arm- strong in importing his goods, and with which latter offence, as the jury found, Toler had no connection whatever, direct or indirect. The case, then, was re- duced simply to this; that A. illegally impotls goods, and they are libelled by the United States, to whom B., at the request of A., pays the appraised value, and other charges and costs incident to the prosecution, having agreed to do so at the request of B. before the condemnation, and become liable to do so in the event of the condemnation. This was the contract to recover these advances, on which the court decided, and nothing more. The contract made by Toler " with the govern- ment," under wliicii he paid the money, was, in liie language of the court, "a auhstantive independent contract, entirely distinct from the unlawful importation;" " it is the payment of a debt due in good faith to the government ;" and " if it may not constitute the consideration of a promise to repay it, the reason must be, that two persons, who are stparately engaged in an unlawful trade, can make no con- tract with each other." " This would be to connect distinct and independent transactions which have no connection witii each other." The court say — " It is laid down with great clearness, that if the importation was the result of a scheme between the plaintiff and defendant, or if the plaintiff" Aad any interest in the goods, or if they were consigned to him with his prieity, that he might protect and defend them for the owner, a bond or promise given to repay any advance made in pur- suance of such understanding or agreement would be utterly void." The court add — " The point of law decided is, that a subsequent independent contract, founded on a new couaideration, is not contaminated by the illegal importation, although such illegal importation was known to Toler when the contract was made ; provided he was not interested in the goods, and had no previous concern in their im- portation." " Prorjrferf HE WAS NOT INTERKSTED IN THE GOODS." A subsequent independent contract, founded on a new consideration, is not contaminated by the illegal importation." Had the plaintiff in this case no interest in these slaves.' Why c2 XXX Groves et al. v. Slaughter. 3 ; he was the owner of them. Had he " no previous concern in their importation .'" Why he was the guilty importer himself, and for a guilty purpose, which is to be consummated only by allowing the sale. And here let it be observed, that the whole charge of the court below was not reviewed by this court, but only that part quoted by the court in 11 Wheat, pages 268 and 269. The obiter dictum in ar- guendo by the court below, as to the validity of certoin sales by an importer, had no necessary connection with the facts of the case, and could have no influence on the decision, and was not reviewed by this court, it not being necessary, as the court said, that all the arguments of the court below, in arriving at their conclu- sions, should be correct, but that " to entitle the plaintiff in error to a judgment of reversal, he must show that some one of these principles (of the charge) is erro- neous to nis prejudice;" and the court declared that it was "unnecessary to re- view" the charge further than was done in the case. Now as to the obiter dictum in this case in 4 Wash. 297, found in the charge to the jury in the hurry of a trial at nisi priua and not affirmed by this tribunal, that dictum is: "So fur as the rule operates to discourage the perpetration of on im- moral or illegal act, it is founded in the strongest reason ; but it cannot safely be pushed farther. If, for example, the man who imports goods for another, by means of a violation of the laws of his country, is diBqua'.ihed from founding any action upon such illegal transaction for the value or freight of the goods, or for other ad- vances made on them, he is justly punished for the immorality of the act, and a pow- erful discouragement from the perpetration of it is provided by the rule. But after the act is accomplished no new contract ought to be affected by it. It ought not to vitiate the contract of the retail merchant, who buys these goods from the im- porter; that of the tailor, who purchases from the merchant; or for the customers of the former, amongst whom the goods are distributed in clothing, although the illegality of the original act was known to each of those persons at the time he con- tracted." Now if the court designed to say that upon the facts of that case the im- porter, except under his subsequent repurchase from the United States at the appraised value, could recover on his contract of sale of goods imported us were these goods during war and against the war policy by a collusive capture, it ia against the well established law of the land. These goods were "condemned to the United States upon the ground of a collusive capture by the Fly." They were then confiscable and confiscated goods, because " shipped nt St. Johns," a town in a British colony, " in December, 1813," during the war with England, and shipped for this country for " the defendant," and attempted to be illegally introduced by a collusive capture. From the moment then of their importation, being property from an enemy's pert, they were forfeited by the laws of war to the United States, and no sale of these goods by the importer, without a repurchase from the United States, wou'd be valid. One case only I will cite on this subject, a decision of Justice Story, subsequently affirmed by this court. In the case of the Rapid, 1 Gallison, 295, in the case of the property of a " native citizen of the United States" owned by him previous to the war, and then in New Brunswick, and for which he sent, immediately after the war commenced, an Jlmerican vessel to bring home for him to Boston, it was declared that even this was a trading with the enemy, and that the property on its way on the 7th July, 1812, to Boston, in an American vessel, was confiscated as being imported against the laws of war. The court said : " The contamination of forfeiture is consuniviate the moment that the properly be- comes the medium, or the object of illegal intercourse." In confirming this decision in 8th Cranch, 163, this court said : " We are aware that there may e.xist consider- able hardship in this case ; the owners both of vessel and cargo may have been unconscious that they were violating the duties which a state of war imposed on them." Nevertheless the property was forfeited. To speak then in the case of Toler and Armstrong of a valid sale by the importer of the goods in regard to which "tiie contamination of forfeiture was consummate," preceding any sale in Boston, never could have been the intention of Judge Washington, for he was one of the judges who concurred in the opinion of this court in the above cited case of the Rapid. But if we look at the facts of this case, and apply them to the sale by the importer of the goods in this case, we will see why such sale of these goods Groves et al. v. Slaughter. XXXI ortation ?'• h is to be > that the \y that part lum in ar- ""ter, had fluence on '•■y. ag the 'ir coficlu. •iginent of e) is erro- »ary to re- charge to ""ittl, that of on im- safely be ^y ineane ny action other ad- d a pow iJulaAer uglit not the im- ustomers iugh the he con- the im- 8 at the "8 were 'e, it ia mned to ^y were own in shipped ced by roperty States, United ion of ipid, 1 tales" ich he rie for ^ and lican said: ly be- ision ider- been d on ie of i to e in one B of iby odf might be valid. They were, as is si id, " delivered to De Koven, the owner and coMiinander of the Fly, who brouglit ir he George (and these goods as part of her cargo) upon admiralty slipuiationa given by De Koven," and it was after this that De Koven, the importer, sold and delivered the goods tor j|5000 to Armstrong. Tliube ndiiiirulty stipulations are known to every admiralty lawyer, and described in the note quoted from 2d Whealun, by which the claimant (DeKoven) receives the goods from the United States, to whom they are claimed to be fott'eited, and with a right to sell them upon giving bonda willi adequate security to the govern- ment, for the appraised value, in cane of a decision against the claimant. But in any other case than this waiver and repurchitse from the government, 1 call for the production of a single case in which a eale by the importer of prohibited goods has been held valid. And here I will slate llidl our chancellor, Mr. Buckner, though a very able and upright judge, never has, 1 believe, tried or heard the trial of a single case in admiralty, and it is evident from a reference to his opinion as to the validity of this sale, that he was misled by the general phraseology of Judge Washington in this case as to the sale by De Koven, the importer in that case, without reflect- ing that this sale, thus held valid, was, alter the importer had paid the penalty by his bond, and repurchased at the appraised value from the government. The court say in regard to the rule which avoidti the contract as unlawful, that "so far as the rule operates to Jiscourage the perpetration of an ir -noral or illegal act, it is founded in the stror gest reason." Now if the importer cannot sell the slaves, and in the langv.ge of Chief Justice Marshall, in 12 Wheat. 439, " no (slavi's) would be imported if none could be sold" by the importer, would it not then " discourage the perpetration of the immoral or illegal net" of importation for sale.'* Would such a construction "extend the sale beyond the policy which in- troduced it.^" Would it "lead to the most inconvenient consequences.'*" What inconvenience is it except to the violator of the law, that he cannot recover the price of the slaves unlawfully introduced for sale Judge Washington admits that the contract cannot be enforced where it " grows immediately out of, and is con- nected with an illegal or immoral act;" so uIdo he says " if the contract be in part only connected with the illegal act, and growing immediately out of it, though it be in fact a nein contract, it is equally tainted by it." Nov/, does the subsequent sale grow out of the ; jportation for sale, or has il no connection with itP Chief Justice Marshall, in 12 Wheat. 447, says: " Sale is the object of importation, and it is an essential, ingredient of that intercourse of which importation constitutes a part. It is as essential an ingredient, as indispensable to the existence of the entire thing, then, as importation itself." Now, if the right of sale constitutes a part of the right of importation for sale, and is an essential ingredient of that right, how can it be said that the sale had no connection wilh the illegal introduction for sale, for though the sale by the importer " be in fact a new contract, it is equally tainted" by the unlawful importation by him for sale. And recollect, that Chief Justice Marsiiall was speaking in the case cited, of the introduction of foreign goods for sale by the importer, and that the decision was confined to him only; it being de- clared Ihat the right of sale by the importer was considered " as a component part" of the right of importation. We may then safely consider it an established rule that wherever "sale is the object of impurliition," it is essentially connected with and grows immediately out of the imporlalion; and that as a consequence, wherever the introduction for sale is prohibited, the sale by the importer will be unlawful. In the case ex parte Bell, 1 Maule and Selw. 751, it was decided, that money advanced by S. to B. one of several partners, out of the partnership funds, on account of payments lobe made (on unlawful injnninces) in pursuance of a previous agree- ment between them to become sharers in profit and loss on such policies, was held not provable under the commission of S., who became b'lnkupt, by the surviving partners of B., "although the surviving partners were ignorant of the illegal character of the advances." In this case it was strongly contended that this was a contract collateral to and independent of the original transaction." But the courttdecided tlint there could be no recovery, and established the principle that " money advanced for the purpose of carrying on a smuggling transaction or any other illegal traffic," could ill I i I I XXXil Grotes et al. v. Slavghter. not be recovered. And lee 8 T. R. 71& ; 6 T. R. 482 ; and Sullivan v. Oravei, 1 Park'* Iniu. 8. Ill Mitchell V. Cockburne, 2 H. Black. 336, the court decided that, where A. and B. are engaged in a partnershi|t in insuring ships, «&c., which is carried on in the name of A., and A. pays the wliule of the losses, such a partnership being illegal, A. cannot maintain an action against U. to recover a share of the money that has been so paid. The alleged illegality of the partnership was founded on the belbremen- tioned statute, forbidding insurances by piirtnerships ; but it wo* alleged that this only extended to public partnerships, and tliut the collateral contract might be valid by one partner to pay over to his cu- partner his share of the profits recovered. The court said : "The cases which have been cited, were one step removed from the illegal contract itself, and did not arise immediately out of it." "Thus in Faikney V. HeynouB, the bond was given to secure the repayment by a third person, of his proportion of the money paid by the plaintitf, in stock-jobbing ; and in Fetrie r. Hnnnaij, the money had been paid to the broker by Keehle, and the action was brought to reimburse his e.xecutors for the defendant s share. In that case indeed, Lord Kimijon seemed to be of opinion that the action could not be maintained, and it was decided expressly on the authority of Faikney v. Reynous. But, perhaps, it would have been better if it had been decided otherwise ; for when the principle of a ca.se is doubtful, I think it hettcr to overrule it at once, than build upon it at all. But be Ihut us it may, it is suliicient now to say, that those cases are one step short of the direct illegal transaction, but that the present case arises immediately out of it." " Heath, J., I am of the same opinion. It seems to me that the object of the ttatutt would he totally defeated, if it were to extend only to those policies in which the names of all the partners were inserted." ■' With respect to the case of Petrie r Ilannay, one judge there, (Ashhurst,) hinted that his opinion might have been different, if the question had been res in- tcgra, and Lord Kenyon dissented." But, if this caee of Petrie v. Hannay, were the law, it would only establish the principle, that an innocent third person, from whom a loan is made, to pay a debt in which he had no connection or participation, arising out of an illegal transac- tion, that this titird person can recover, even although the borrowed money is applied by the borrower to pay a debt arising out of such unlawful transaction. There, the Mirty whose right was upheld, had no participation in the illegal trans- action ; heiL', the plaintiff is the guilty transgressor: there, the person, Portis, through whose rights the recovery was had, in the language of Justice Ashhurst, " was not concerned in the use wiiich the other made of the money, it was ft fair and honest transaction, as between tiiose parties." And Faikney v. Reynous, pro- ceeds on the same principle. Was this a fair and honest transaction on the part of the plaintiff.' Was it fair and honest for the slave trader in this case, with intent to sell, to introduce the slaves, in defiance of law, and consummate that unlawful intention by the sale i* The case, then, of Petrie and Hannay would prove nothing at^ainsit us, but as it has been repeatedly di.'^regarded, and the distinction between malum prohibitum and malum in se, exploded in England and America, the deci- sion in such a case against the plaintiff, would go far beyond the present; for, if a broker, who, at the winding up of a partnership, paid debts due third persons, arising out of illegal transactions, in which he had no participation, interest, or con- cern, could not recover the money thus advanced after the conclusion of ail these unlawful transactions, on the subsequent, new, distinct, and independent contract, on the part of an innocimt third person, what hope could the slave trader plaintiff have of a recovery in this case .-• And yet the English law is now settled, that such third person could not recover. In the case of Booth v. Hodgson, 6 T. R. 409, it was expressly conceded, that under no case, not even that of Faikney v. Reynous, was it ever supposed " that one delinquent can maintain an action against another." DitHculties arose as to the pleadings on the bond in the case of Faikney v. Rey- nous, upon the ground that the defence was not properly before the court, and therefore, in Petrie v. Hannay, Lord Kenyon, did not expressly overrule this case ^- Or»vM, 1 where A. and ied on in the 1? ''legal, A. t'lat has been betbrenien- ««1 that this ight be valid overed. The ed from tlie '1 Faikney •rson, of his in Petriev. action was iase indeed, tained, and perhaps, it principle of m it at all. f tep short tJiately out ^'JMt of the » in which '^shhurst,) sen rea in- iblish the >ay ,1 debt il transac- nioney ig msaction. ?ul trans- >, Partis, ^shhurst, '''as a fair Oils, pro- e part of h intent inlawful nothing >etween 16 deci- foT, if a 'ersons, or con- 1 these n tract, laintiff d, that ), that " that Rey. , and case Grovea et al. v. Slaughter, XXXIll of Faikney r, Reynnua, but if not determined on the form of the plea, he did most ezpruHHiy disMent from it, esppciaily tlie (lixtinctiiiii between malum prohibitum and malum \n»e, saying, " if one of two partufrs advunce money in asmuggliiig trans- action, lit! cannot recover his proportion of itngainst his pailner, because the trans- action iH prohibited ; and yet Hinuggling Ih not malum in ne as contradislinguiiihed from malum /irohihitiim." The reHt of the court who did not think Fuikney and KeynoiiH wns decided on the pleudinirH, Hiiid, in tliiil case, "Lord Mansfield and the wiioie court proceeded on the ground, tliiil as it wiin not malum in sk, but only malum /irohihitum, and as tlie plaintiff waH not concerned in the use which the other in.'ide of tiiu money, it was a fair and lloneHt transaction, as between those parties. " 3 T. II. 422. Now, if the distinction between malum prohibitum and malum in se, be now entirely e.xploded, as these two cases of Faikney and I'etrie proceeded on that dis- tinction, tiiey must botii fall to the ground. In Aubert v. Maze, 2 Uos. & Ful. 370, it was decided, that "money paid by one of two parties for the other on account of losses incurred by them in partner- ship insurances, cannot bo recovered in an action brought by him against the other partner. And, if this, with other causes of dispute i)e referred to an arbitrator, who awards a sum due from one to the other for money so paid, the court will set aside that part of the award." In deciding this case. Lord LOidon, Chief Justice, said : " Smne of t!ie cases on this subject, especially that of Petrie v. Hannay, have pro- ceeded oti a dirinction, the soundness of which I very much doubt." Referring again to the iwo cases of Faikney v. Reynous and Petrie v. Hannay, Lord Eldon, after quoting the statement of C. J. Eyre, in Mitchell v. Cockburne, that " it would have been belter if they had been decided otherwise," adds as his own opinion, " Indeed it seems to me, that if the principle of those cases is to be supported, the act of parliament will be of very little use." After giving it as his opinion that the cases of Booth v, Hodgson, and Mitchell v. Cockburne, were opposed to those of Faikney v. Reynous, and Petrie v. Hannay, he states : " In addition to this, the cases of Steers v. Lashley, and Brown v. Turner, 7 T. R. 630, stand in opposition to Petrie v. Hannny, Foikney v. Reynous, and Watts v. Brooks. With respect to Petrie v. Hannay, very great weight is due to the opinion of Lord Kenyon, who dissented from the rest of the court." Heath, Justice, concurred and disapproved the distinction between malum in se and malum prohibitum. Yorke, Justice, said: " I perfectly agree with my brother, Heath, in reprobating any distinction between malum prohilntum and malum in se, and consider it preg- nant with mischidf Every moral man is as much bound to obey the civil law of the land as the law Denature." Chambre, Justice, concurred and expressed his dissent from the cases of Faik- ney and of Petrie. See 3d East, 222. In Steers v. Lashley, 6 T. R. 61, " A. being employed as a broker for B. in stock-jobbing transactions, paid the differences for him ; a dispute arising between them as to the amount of A's. demand, the matter was referred to C. who awarded £300 to be due ; on which, A. drew on B. for iilOO, part of the above, and endorsed the bill to C. after B. had accepted it held, that C. could not recover on the bill." Lord Kenyon, being of opinion, that n " the bill grew out of a stoclc-jolibing trans- action, which was known to the plaintiff, he could not recover." It was urged on the authority of Petrie v. Hannay, that " as tlie broker had actually paid the differ- ences for his employer, the bill in question, which was to secure him repayment of what he had paid, was not vitiated by the original transaction between the defendant and those icith whom he dealt." It was said, that " This is not an action to recover the differences of the "'rck-jobbing, nor is it brought by either of the parties to those transactions ; but by in innocent person on a bill of exchange, drawn by the broker on his principal, fo' sums of money actually paid by the broker, and for the balsnce of his accour.t ;" but the plaintiff was not permitted to recover. Here, the broker had no interest in the stock-jobbing transactions, but simply advanced the differences arising out of these transactions as due by the defendant, for which advances he received from the defendant the bill in question. In Brown v. Turner, !l I XXXIV Groves ei al, v. Slaughter. « - 7 T. R. 626, it WM ruled, tlint " if a broker draw on liii employer for diflTorencei paid tor him in itocii-jobbinjj tranititctiona, and the employer accept the bill, and then the broker endorse it to u third pereon at\er it ia due, the latter cannot recover un the bill." In (7iinnon v. Dryce, 3 Barn. & Aldennn, 179; it waa adjiid}{ed, that " monnj Unt iiiul iipplied by the Imrrower, tor the HxprfMit purpoae of Multliiiff loHMea or ille- gal Mtiick-jobbin({ triiiiMUntiDnM, to which t/u lender wan no party, cannot be recovered back by hint." In tiiin cave A., who waa not a broker, and not concerned in any of die illiiful transactiutu), alter all theiie traiiHactiona were clotted, loaned money to J)., to enubjt; him to pny the |oi-rht with u view to evade the revenue lawn of another country, which the courtu dticline to notice, yet tiiut sales made in tlntflond of un innocent article, such as ginger to a brewer, to be usted in making beer, against a prohibition of the use of ginger by brewersi in making beer, is void. And here we find that money loaned by un innocent third person, to ennble another to pay losses which he hud sustained in illegal transactions, cannot be recovered. Mere, when the money was louned, the otfeiice of stock-jobbing had been committed ; the loan of the money tu pay the losses was u new, Hubftecpient, distinct, and independent contract, and yet even such contract wr.s void, as against the policy of the law. The court said, "On the part of the plaintitf, it was contended, tliat, as he was not a party to the illeg: 1 transaction, the loun was not illegal." "The authorities principally in favour of the jiluintijf, are those of Fuikiiey v. Reynous, and I'etrie v. Ilannay. The propriety, however, of these dfcisions, lias been ([uestionejl in the several sub- sequent cases, that were cjuoted on the purt of the defendant; and the distinction taken in the former of them, between malum prohibitum and malum in se, was expressly disallowed in the case of Aubert v. Maze. Indeed, we think no such distiction can be allowed in a court of law : the court is bound in the administra- tion of the law, to consider every act to be unlawful, which the law has prohibited to be done ;" and the bcmd for the money loaned, was held void. It was not pre- tended that the statute in this case declared loans, or notes, or bonds for money loaned, to pay the losses in this case, unlawful, or that it inflicted any penalty on such loans, or that such lender could be fined or punished in any way; but to en- gage in such stock-jobbing transactions was illegal, and therefore to prevent the vio- lation of the statute, even the lender could not recover money loaned to j)ay losses arising out of such transactions, even after these losses iiad all been incurred. The case arising out of a bankruptcy, I have transposed the words, plaiT'tiff and defendant, in the text, to avoid a periplirusis. And now since this case, decided in 1819, I cull upon the opposing counsel to show a single case, in which the author- ity of either of these decisions of Faikney v. Peirie, have been recognised. In Cuinbden v. Anderson, 6 T. R. 723, 1 Bos. & Pul. 271, it wusudjudged that "the exclusive right of trading to the E. Indies, granted to the E. I. Company, by 9, 10 W. 3, has never been put an end to, and any infringement of it is a pub- lic wrong. Though such parts of that act as inflicted penalties, &-c., were repealed by 33 G. 3, c. 52, and though the latter act says, that no acts or parts of acts there- by repealed, shall be pleaded or set up in bar of any action, &c., it is competent to underwriters who have subscribed policies on ships trading to the E. Indies in con- travention of 9, 10 W. 3, to avail themselves of the illegality of such trading, in an action on the policies." The court in that case said these plaintiffs, " may still insist that the exclusive trade of the company is no more than their private right, the infringement of which may perhaps give a right of action to the company, as for a civil injury over and above the several parliamentary provisions which have been made for securing it, but can have no other effect, and particularly cannot taint with illegality, transactions and contracts which are collateral to it." " When this point was suggested in the course of the argument, Mr. Rous answered, that the exclusive trade of the company was a public regulation of the national com- merce, and this was a very good general answer, but I will enter a little further m Gron-x et al. r. Shi iiff filer. xsxv «■ for di/r«renc«i "P' the bill, and ' cannot recover "int " moneij 'H loHnen or ille- lot h« recovered cerncd in unij of I'd niont-y to U. nnmictionM, and' ''y could |j« had «» alliriii..d liere, tilUt I In. jroods 'itnj, wliid, the noeent article, 'liiljilion of the "•i that money * which he hud t'lt! money nus ' t'le money to '"ract, and yet ''i** court said, 1 l>"rty to the princijmlly in '« V. llunnny. le Beverul sub- I'le 'iintinction urn in se, was Ihink no such i« idministra- ''08 prohibited t was not pre- ids /'or money "y penalty on y; but to en- event the vie- to pay losses "curred. pt'iiptijf and e> decided in ' tile author- sed. Jjudged that 'ompuny, by •t is a pub- ere repealed facts there- ompetent to dies in con- •iding, in an " 'nay still ivate right, Jmpony, as vhich have ^rly itannot " When ';ered, that ional com- le further I into the diMCUMion nf it. The exniunive trade of the E. I Tonipany, is now so interwoven with the (general iriterei>t« of ilie htile, that it ik uh loiitrer to h« t'onnidered as tlie private ri^ht of a corporatinn, hut i* liecoine a grent naltonul concern, and the infi inj^eiiient <<(' it a piililiv minrhtrf, and an hmcIi iM prii|iil)itru a contract for a few bays of tea, or a few tubs of foreijrn spirits, bought or sold in the course of a contraband trarcssi»/ and unquestionably contra- vene public policy and be injurious beyond all doubt to the interests of the state." Now Mr. Chitty was here speaking, as the very preceding sentence shows, " of con- tracts void at common lata as affecting public policy," and not of contracts repug- nant to the policy of a statutory or constitutional provision. We have seen in tiie numerous cases already cited, where the question is whether a contract is repug- nant to the policy of the statute, that so far from the rule being that the agree- ment must expressly contravene the statute, it must receive the most liberal con- struction to prevent a defeat of the policy of the statute, and that if it be within the spirit or scope, intention or object of the law, by implication or otherwise, tlip agreement is void. Did Mr. Chitty also mean to say that thj contract must be "injurious beyond all doubt to the interests of the state," in order to declare it void, when the question arose u|i'in a statute .' Why, if the statute by any fair and just construction avoided the contract, we have seen the courts in repeated instances, some of which have been cited, declare the contract invalid as contrary to the poli- cy of a statute, whilst at the same time they announced their disapprobation of tiie policy of the statutes, and declared that in their judgments the contract was not injurious to the interests of the state. It is then when in the absence of a statute or constitutional pro vision, a court, ?/:/;o« its own judgment, is refusing its aid to a contract upii.. the ground that it is against the public policy, and injurious to the interest of the state, that it must be a clear case, and not " a doubtful matter of public policy." That such was Mr. Chitty 's meaning, is evident from the fact that in this chapter, which is headed " of contracts void at common law, as affecting public policy," he enumerates only cases void at common lata as injurious to the public interest, aid not cases depending upon the construction of a stattite; and then in a separate chapter he speaks " of contracts void by statute," and enumerates many instances under which contracts not within the words of the statute, are declared void, as repugnant to its intention, scope and spirit. In his notes to this chapter he refers to a tJeatise on the same subject, in the third volume of his commercial law, page 83, from wiiich I quote: ''But a distinction has been introduced into our law books, under the two several denominatiouh oi mala prohihita and mala inse." He denies and denounces this distinction ; and then says, where " an act is prohibited generally by statute, the punishment which the law annexes to the offence is in general by indictment, and this is that species of crime which our law writers usually understand by the term malum inse." "And the circumstance of both parties being ignorant of the law, and being innocent of any intention to violate, will not constitute any distinction." " And the illegality affects all contracts cal- culated to violate the law ; and therefore, where a voyage has been declared illegal, a ; drson cannot be sued for cirelessly stowing goods to proceed upon it." The authority then of Chitty is in our favour on all the contested points. Here Mr. xl Groves et ah v. Slaughter. I P Cliitty says, when the introduction of slaves for sale, (to specify the case) is " pro- hibited generally by a statute," and not the implied prohibition by a penalty, " this is liiat species of criaik which our law writers usually understand by the term ntiilnm in sc." The words here then are " the introduction of slaves as merchan- dise or for sale shall be prohibited from and alter tlie first day of May, 1833." The prohibition then being general after the day fixed, and without a penalty, the intro- duction ol' the slaves in this case for sale was a crime, it was mabivi in sc, it was punishable by indictment, with fine and imprisonuient; and all the argument that has been made to show that this is not a prohibition, but merely directory to the legislature, because there is no penalty, falls to the ground. And now then I approach the grave subject really referred to in the quotation made by our opponents from Chitty, and tliat is, wliether the introduction of these slaves for sale, and the sub- ^!equeIlt sale, would be fo clenrly repugnant to the true policy of the state, and so injurious to its interests, that such a contract of sale would be void on general principles, had tjiere been no provision on the subject in the constitution or statutes of Mississippi. The power and duty of the coun to declare such contracts void in clear cases of repugnance to the policy or interest of a state, even where there is no statutory or constitutional enactment, is admitted in the clause quoted by our opponents from Chitty; and upon reading that chapter, numerous instances of the a|)plication of the principle will be found, in cases less clear in my judgment than the present, and to these cases I refer the court. The same doctrine iti thus laid down by Lord Mansfield, in Ist Cowper, 39: "It is admitted by the counsel for the defendant, that the contract is against no posi- tive law. It is admitted, too, that there is no case to be found wiiich says it is il- legal : but it is argued, and rightlj-, that notwitlistanding it is not prohibited by any positive law, nor adjudged illegal by any precedents, yet it may be decided to be so upon principles; and the law of England would be a strange science indeed, if it were decided upon precedents only. Precedents serve to illustrate principles, and to give them a fixed certainty. liut the law of England, which is exclusive of positive law, enacted by statute, depends upon principles; and these principles run through all the cases, according as the (larticular circumstances of each have been found to fall within the one or other of them. The question then is, whether this wager is against principles? If it be contrary to any, it must be contrary either to principles of wora/i7i/; for the law of England prohibits every thing which is contra bonos mores; or it must be against principles of sound policy; for many contracts which are not against vioralilij, are still void as being against the maxims of sound policy." This doctrine has been repeatedly recognised as the law in England and America, and this vtr" principle is (jvotcd and recognised by the su- preme court of New Jersey in 5th ilalsted, 91, and by the supreme court of Penn- sylvania in Ist Binney, 123; and in the concluding opinion in that case, as to a sale of lands, the court say — " Exercisinnr jurisdiction, the state is bound to pre- serve the peace and aid contracts, but not such ts militate against her own rights. It would be unnatural and against reason, which is a giound of the common law. It is against public policy. Self-preservation forbids it. So that, mdependent. of anij act vf the legislature, I must h'dd the transfer illegal, and the obligation, given under such consideration, void." Does it then in this case, independently of any constitutional or statutory enactment, clearly appear to the court, that at the date of this contract, the introduction and sale of slaves, as nierchandiire, was against the true policy, was dangerous to " the peace" of the state, or "injurmus to its in- terests," it v/as the duty of the court not to maintain the action on the contract. No court is called upon to lend its assistance to contracts encouraging a traffic de- trimental to the interests, or repugnant to the policy, or dangerous to the peace of the state. It is true that this is a power of judicial tribunals, where they act merel}' on general principles without precedents, which nnist be exercised only in clear cases; but where the case is clear, it is a great protective and conservative power, which no court can refuse to exercise, without a gross dereliction of duty. Is this a clear case? The views of our highest court, of the dreadful consequences of this traffic, have been already quoted ; and if they are correct, as no reasonable man can doubt, then Groves et al. t. Slaughter xli is tliere not strong ground upon wliicli to contend that this contract was void on general principles, in the absence of all provisions in the constitution or statutes uf the state? But suppose it not to be, merely on general principles, a case suffi- ciently clear for the court to refuse its aid by enforcing the contract, who can doubt wliat was their duty, when there was a constitutional mandate on the subject, sup- posing it only to be a command of the constitution, that on the 1st of May, ]8o3. tlie traffic shall be prohibited, was it not the declared policy of the state that the traffic should cease on that day ; was it not the will of the convention, as announced in the fundamental law, that it should then cease ; and was the court, in defiance of this !innnnciation, in defiance of the mandate of the convention, in defiance of the will of the people declared in convention, and again at the polls in 1833, bj* refusing to change this mandate into a grant of discretionary power to the legisla- ture, to maintain contracts repugnant to that policy, because the legislature had not acted on the subject? We have seen that, in clear cases, it is the duty of a court to refuse its aid to contracts repugnant to the policy or interest of the state, or dangerous to its peace even in the absence of all legislative or constitutional prohibitions; but where there is a mandate of the constitution on the subject an- nouncing the will, or, if you please, merely the opinion of the people of the state, that the traffic shall be prohibited on a day certain, must not all doubt cease, and tlie duty of the court become clear and obvious ? But, if this clause of the constitution does not of itself render the sale unlawful, it is insisted that it does so when taken in connection with the preceding act of the legislature, of the ISth June, 1822, Rev. Code, 369. It is declared by the 1st section of that act, "That all persons lawfully held to service for life, and the descendants of the females of them, within this state, and such persons and their descendants, as hereafter may be brought into this state, pursuant to law, being held to service for life, by the laws of the state or territory from whence they were removed, and no other person or persons whatever, shall henceforth be deemed slaves." Now, if this clause of the constitution prohibits the introduction for sale, would these slaves have been introduced " pursuant to law ?" That will not be contend- ed. Then this section declares that they shall not " be deemed slaves ;" that is. they shall not be deemed so in Mississippi for the purpose of lawful sale there by the importer, because the subsequent sections of this act explain its meaning, by imposing a penalty on the sale or purchase of all slaves not imported pursuant tr> law ; and it will not be denied, that a penalty on the sale implies a prohibition of ihe sale, and renders that sale unlawful. Dwaris on Stat. 678 ; Carth. 251 ; 1 Bin lis ; 3 Chit. C. L. 84. For the purposes then of a lawful sale by the importer, negroes not " brought into the state pursuant to law" cannot " be deemed slaves." and if so, the sale must be unlawful. What then, it is asked, becomes of these slaves ? In reply, I answer, what became of the slaves introduced against the pro- visions of the act of 1808 or 1822, and what becomes of the slaves unlawfully in- troduced since the act of 1837 ? In all these cases it is conceded that the sale is invalid by the importer, although no further provision is made in any of these cases in regard to the future condition of the slaves. In all these cases, however, as in this, the sale by the importer was invalid, and for that purpose they could not " be deemed slaves." So in the numerous cases cited in this argument, the land in Pennsylvania, the ginger sold to make beer, the butter, corn, and coal vended by unlawful measures, the ribbands bought as presents for voters, the vessels trans- ferred contrary to the policy of the navigation or registry laws, the horses pur- chased on Sunday ; in all these cases the property remained property, and a sub- ject of lawful traffic, but the sale hij the rlulator of the law was held invalid. Now, this first section of the act of 1822, was in full force iX the date of the framing of the constitution of 1832, and the 4th section of the schedule of that instrument declares, "All laws now in force in this state, not repugnant to this constitution, shall continue to operate until they shall expire by their own limitation, or be altered or repealed by the legislature." Now this constitution prohibits the intro- duction of slaves as merchandise or for sale, and this section of the act of 1822. declares, that such slaves as shall be unlawfully introduced hereafler, shall not " be 1)2 xlii Groves et al. v. Slaughter. deemed slaves," for the purpose of a lawful sale by the importer. There is no re- pugnance whatever in the law to this constitutional proiiibition ; on the contrary, it is, if not clearly implied in the prohibition itself, certainly not repugnant to it, and conformable lO its expressed object. This section then, of that act, so far from being repealed, was re-enacted and continued in operation by the 4th section of the schedule of the constitution of 1832, and must be construed in conjunction with that instrument. This section then, of the act, must be regarded as within the view of the frainers of the constitution of 1832 ; for it was then continued in operation by them; and that section having rendered illegal the sale by the importer of all slaves that should thereafter be unlawfully introduced, rendered it unneces- sary for the convention to declare the sale illegal. This also is a strong argument to show that this clause of the constitution was a prohibition, when we see that this section of the act of 1822, was thus, by that instrument, connected with, and made a part, and continued in operation thereby : und, even if this were regarded as a new and distinct prohibition from that of the acts of 1808 and 1822, but only so far differing as this, that by these laws the proiiibition of this traffic was special and partial, and here it was general and total, would it not be a most e.xtraordinary construction to suppose, that whilst the convention si'bstituted a total for a partial prohibition, it should intend to depart from the policy of a quarter of a century, by which, under the acts of 1808 and 1822, wherever the impurtatiun was illegal, the sale also by the importer was void .■" Perceiving the force of these arguments, our opponents meet them by asking, would you emancipate all these slaves introduced from 1833 until 1837 .' Were they emancipated under the act of 1808, of 1822, and of 1837, when unlawfully imported .'' and if not, the question presents no difliculty. Under the early acts of congress prohibiting the introduction of slaves from Africa, they were not emanci- pated ; yet the sale by the importer was absolutely void. Laws in pari materia are to be construed together, and as one code; and when a code of laws has been com- piled by the legislature, and by an amendment of the constitution, that instrument, whilst it expressly continues in force every jjortion of that law not repugnant to the constitution, introduces any new provision or modification of the pre-existing sys- tem, the who'.e is to be con.strued together ; and the new provision or modification is to be regarded as incorporated in the former system, as constituting a part of it, and as substituted for any particular section of that system to which the new pro- vision may be repugnant, or in which it may affect a change. Now, tiiis act of 1822 before cited, was a complete code of laws in regard to slaves, consisting of eighty-six sections, nearly every one of which is now in undisputed operation. Every section of that law which is repugnant to the constitution of 1832, is there- by repealed, and the new provision substituted in place of the repealed clauses as a part of the system. The doctrine is thus laid down in Dwaris, 699-700, and is sustained by numerous authorities. " As one part of a statute is properly called in, to help the construction of another part, anl emanci- lateria are Jeen com- strument, ant to the sting sys- ification art of it, new pro- is act of listing of aeration. is there- ises as a >, and is ailed in, port and ler laws y to the ?e. In certain, ed, that cy, and I'isionM. i taken le con- m, and nother doing on one to the e con- incor- y| M 1 I porated with the former." Now, in place of the 2d, 4th, and 5th sections of this act of 1822, read, us a part of that act, the provision of the conMlilulion of 1832, duclaring that, " tiie introduction of slaves as merchanditie or for sale, sliall be pro- hibited I'riiin and after the 1st of May, 1833." And then, by the 1st section of the act, no such ncgrnes thus introducetl sliall, for the ()urposes of lawf.il sale, b^' the importer, be " diuMiiiHi slaves," and tiiis ia enouf^h to decide fliis; (|uestion. But tills is not all, fur 1 contend, that as this provision was thus incorporated by the new constitution, in place of sections 2, 4 and o, aa part of the act of 1822, the other provisions remaining in force, then the penalties attaching ujion the sale of slaves ini|)urted as merchandise, contrary to the provisions of the law under the 6th sestion of tlie act of 1822 would apply. That section was not repugnant to the clause in question of the constitution, but remained in force, and in aid thereof, until the legislature attached other penalties. This we have seen is the principle cited, that all acts in pari inulrria are to be taken together, " «s // titcij were one laio.'' Thus, "if one statute prohibits the doing a thing, and another statute be afterwnrd.s made, whereby a forfeiture is inflicted on the person doing that thing, both are considered as one statute." Thus, a new forfeiture attachi- to an old pro- hibition as part of it ; so " when an action fuundrd vpon one stututr, is given by a subsequent statute in a new case, every thing annexed to the action by the first Htatute is likewise given. Indeed, the latter act may be considered as incorporated leitli the former." Here, then, was a penalty on the sale of slaves unlawfully introduced as mer- chandise ; a subsequent act of sovereign legislation extends this provision by for- bidding the introduction of all slaves as merchandise; does not the penalty under the old law clearly attach under the nevf provision, especially when every thing not repugnant to that provision in the former law is expressly continued in force by the last enactment .•' If this were a second supplemental act, there could be no doubt ; and is it not more important to apply the principle to modifications of the former system introduced by a prohibitory provision of a new constitution .' It has been decided that "if a statute prohibit eontraband goods under a penalty, a 8ubseq\ient statute declaring goods contraband, will draw the jjenalty after it." " The statute of Anne, c. 7, s. 17, imposing a penalty of treble the value on the im- portation of foreign goods prohibited to be imported into this country, extends to all such goods as have been or may be prohibited stibsequently to that statute, as much as if they had been prohibited at the time of making thatstatute." " Dwaris on Stat. 700, 743, 744; Atty. Genl. v. Saggers, 1 Price, 182. Thus, by the 8th Anne, c. 7, certain penalties are imposeti on the importation of such goods as were prohibited, foreign gloves not being among the articles then prohibited. The 6th of G. 3, c. 3, an independent, not a supplemental act, passed several years subsequent- ly, prohibited the importation of foreign gloves, and inflicted penalties on the con- cealment of them. The slat, of Anne inflictf d a different penalty on persons know- ingly having possession of such goods as were then prohibited. And the question was, whether the double penalties under both statutes could be recovered. The court decided that they could. They say, " the two statutes may well stand together. The one requires merely a possession of the goods, with a knowledge of their prohibition; the other, a possession with intent to conceal from forfeiture or seizure." And both penalties were enforced, though these gloves were "not prohibited by the first act." This is a niueh stronger case than the present, where only one penalty would be exacted ; but the principle applies, that where certain classes of goods for slaves) are prohibited to be imi)orted under a penalty, and by subsequent legislation the prohibition is extended to another class of goods (or slaves), the penalty under the first act attaches to the goods (or shives) enumerated in the second, although it be not a supplemental act, and not referred to in the second act. And Lord Mansfield upholds the same piinciple of considering as one act, statutes in pari materia, al- though the first act is " not referred to" in the last statute : and in aid of the con- struction of a late statute, he declares it a proper rule " to look into the policy of a former act in pari materia, although that act may have expired." Dwaris, 700, 701 ; 1 Bur. 449; Bac. Ab. T. Stat. 1, 3; 1 Vent. 246; Wallis v. Hudson, Chan. Rep. ' xliv Groves et al. r. Slaughter. 276. And it is even competent to call in aid a "repealed Htatute," to assist in the construction nt' another statute in pari materia. Now, if under the strict construction given to penal statutes, the penalty of the first statute on the iniportation of certain proiiibited goods, will be inflicted as to otiier goods prohibited by a secoiul statute, and even double penalties will be ex- acted, can there be a doubt that where the same acts are most liberally expounded, when the penalty is not demanded, but the act is only asked to operate so as to render the contract unlawful, that the 1st section of the act of lfi22, which had that effect on the sale of ail slaves that should not " hereafter be brought into this state pursuant to law," must expressly apply to such slaves as were prohibited to be introduced by the constitution.' And is it not incredible, that when the consti- tution of 1832 prohibited the introduction of slaves as merchandise, it was intended to change the settled policy of the state for a quarter of a century, by which, under all acts in pari materia, the sale was uliMiys made unlawful ichencrrr the importation was forbidden? This act, then, of 1822, is a j)art of tiiis provision of the constitution of 1832, expressly continued in force thereby, and demonstrates that this was a prohibition; for why, by implication, is this clause to be rendered merely directory for future legislation, when there was already legislation full and complete upon the subject, and expressly continued in force by the constitution .' I have before quoted the decision in our favour of the highest court of our state ; and here I contend, that the decision of the highest court of a state, expounding its constitution, is obligatory oti thi.s court in all cases when that construction involves no repugnance to the constitution of the United States. Could congress give to this court an appeal from the decisions of state tribunals in questions not involving a repugnance to the constitution of the United States.^ Surely not. And because it has jurisdiction, not on account of the question, but of the parties, between citi- zens of different states, shall it therefore assume the power of disregarding the con- struction of their own constitution, and of their own statutes by the highest courts of a state.'' If so, and it possesses this power in ont- case and in one state, it possesses the same power in every state and in all cases, and may overrule any number of decisions upon all their statutes and all their constitutions by all their courts ; and thus establish two rules of property under the same state statute or state constitution, and both to be enforced within the r.tate, the one by the state, and the other by the federal tribunals. Let us take the case of Maryland, and suppose, that under their laws, their courts not only invalidate tlie esle of slaves introduced for sale, hut declare the negro free. If, in a case between citizens of different stales, this court should give a different construction to the laws of Mary- land, and declare the sale valid, and the negro a slave, what would be the result.-' Why , whilst the slave trader of another state, aided by this court, should collect the money for the sale of the slave, that same slave might be declared, upon his peti- tion, a freeman, by the courts of Maryland ; and no one pretends that from that de- cision there could be any appeal to this court. And to reverse the picture, whilst the state courts held the sale valid and the negro a slave, as between their citizens in expounding their laws, this court, in a case in which a citizen of another state was a party, might pronounce such sales invalid and the negro free, and thus eman- cipate the slaves of a state against her will. This is but one case out of a thousand, of conflicting decisions that would con- stantly occur, bringing the state courts and state officers into constant conflict; often as to the same money or property, real or personal, and yet neither bound to acquiesce in the decision of the other, and of course resulting in contests offeree or anarchy. Under our form of government there must be some tribunal, in the last resort, to expound laws and constitutions. That tribunal, in cases involving the construction of the constitution of the Union, is this court; ond in all other cases involving only a construction of a state constitution, the highest court of the state is the expounding power, to whose decisions all must submit, or two opposite and contradictory constructions and rules of property must prevail and be enforced in the same state. No powers are retained by any state, if this court in all cases, though not involving a construction of the constitution of the Union, may demand obedience in every state and from all their courts, lo all their decisions upon ques- Groves et al. v. Slaughter. xlv tions merely local, and embracing only an exposition of state laws and state consti- tutions. Over these local queslioiiH, it i; conceded, that this frovrrnmcnt has no control. The coiiHtitiition itself declares that " the powers not dele{ruted to the United Stales by the constitution, nor prohibited by it to the state.s, are reserved to the states reM[)ei',tiveiy , or to tiie ])eopie." These local (|ueHt,i')iis upon which congress cannot h-i^islale, are conceded to be cases of power res , J to tiie states, and not delejr.ited to the United States, And yet, upon uU these local iiuestions, over which llie governments of the stales have exclusive power, and this froccrn- inent has no power, it may, upon this principle, nay, it must sweej) them all within the Controlling sway of one of the de|)urtmenls of this government. Especially over slavery, or any other local (piestion, the states would have no power, and it would all be c(mcentraled in one of the de|)artments of this government. If, in construing in the last resort, the constitution of a slate, this tribunal may decide that upon llieir construction of that instrument, all the slaves within the limits of the slate are Iree men, in vain nuiy all the state tribunals have decided dift'erenlly; in vain may we urge, and the opposing counsel concede, that no power over the " question," was delegated by the constitution of the Union to this govern- ment, that it is a power admitted to bo exclusively reserved to the stales ; but if the <]U4;sti(U< n rises on the construction of a state constitution, in a case between citi- zens of dilferenl slates, r'.iul comes into this court, its construction of that constitu- tion, (if the state iuterpretutioa be not binding,) is to be the supreme law of the land, and obligatory on the same oueslion on all the stale tribunals. There is no escape from these consequences, but in the concession, that the state tribunals are not bound by the construction placed on local questions arising under state laws, and elate conslilulions. And is there to be no final and peaceful arbiter of any such questions.' Must the conflicting decisions of the slate and federal courts, both bo executed without the power of ap])eal from either tribunal, and I'orce decide be- tween tile marshal on the one hand, and the sheriff on the other, in carrying into elFect these contradictory decrees.' Such a system would be the reign of anarchy and civil war. Are we to be told, change your state constitutions, and we will expound ihein dilferently .' So you will the cunstilulion as changed; but that will not recall or clianire the i)ast decree as made, whethei for emancipation or any other purpose under the old constitution. Besides, it is no easy matter to change the constitution of a stale. In most of the states a majority of at least two- thirds is required to effect this change. In some slates, for instance, in Maryland, as to slavery, it reijuires the unanimous consent of both branches of the legislature ; and ia many cases the proposed remedy of changing our stal'j constitutions, might prove quite ineffectual, and in no case could it recall the past, or obliterate the rights accrued under your construction of the old constitution. In the case of the Bank of Hamilton v. Dudley, 2 Peters, 492, the question was, whether the court of common pleas of Ohio had authority, as a court of probate under the constitution of that state, to order the probate sale of certain property. The case was argued at one term; but tlii court hearing that the same question was "depending before the highest judicirf tribunal of the stale," Chief Justice Marshall announced that '■ the case was held under advis 'ineiil," to receive that opinion. The counsel opjjosed to the Oliit) decision, contended, that " this court will never follow the law as decided by the local tribunals, unless il be settled by « series of drcisions, and is acquiesced in by the profession. But it is asked in this case, to yield ini|>licit obedience to an isolated case, in the decision of which the court was divided; a decision, too, as il is solemnly believed, fraught with the most pernicious and ruinous consecjuences; and which, unless the learning and justice of the profession are greatly mistaken, will never meet its approbation." The same counsel also contended, that the order of the court of common pleas, to sell the property, must be considered res judicata and conclusive, till reversed, and not to be reversed in a collateral issue. In reply to this last position, as to the order of this inferior court of common pleas, the court regarded it as to " be treated with great respect, but not as conclusive authority." In regard, however, to the decision of the highest court of the state, expounding their state constitution, Chief Justice Marshall thus announced the opinion of this court : " It is also contended, that the (i t':*^ xlvi Groves et al. v. Slaughter. jurisdiction of the court of common pleao in teHtamoii'ary matters, is establislied by tlie constitution ; and that the exclusicc poictr of the stale courts, to construe lejfis- lative acts, does not extend to tlir, /larnmoiint taw, so as to enable them to give etH- cacy to an act which is contrary to the constitution. We runnot admit tiiis dis- tinction. The judicial department of any irorernment, is tlie ris(ltlful expositor of its laws; and kmi'iiatic ai.lv of its suitrevu law. If in a case depending before any court, a legislative act shall conflict with the constitution, it is admitted that the court must tixercise its judgment on both, and that the constitution must con- trol the act. The court must determine whetlur a repugnancy does or does not exist, and in making this determination, must construe both instruments. That its construction of the one ia authority, while its construction of the other is to be disregarded, is a proposition for which the court can perceive no reason." Such was the view of this court, of a decision of the highest court of a state expounding its state constitution ; not a series of decisions, but a sins^lc decision just pronounced by a ditndcd court. It was regarded as conrliisivc, because the final construction of its state laws was a question within " the exclusive pow>.r of the state courts;" they were " the rightful expositor of its laws, and cmplMlically of its supreme law." In Coates v. Mus >, 1 Brock. 539, 543, in a case overruling a decree for money, not land, growing cat of a construction of a state statute, Chief Justice Marshall said : " It is always with much reluctance that I break the way in expounding the statute of a state, fo tlie exposition of the acts of cvcnj legislature is, 1 think, the peculiar and appropuate duty of the tribunals created by that legislature." In Gardner v. Collins, 2 Peters, 89, this court say, in regard to the construction of an act of the legislature of Rhode Island, that " If this question had been settled by any judicial decision in the state where the land lies, we should, upon the uni- form principles adopted by this court, rec jgnise that decision as part of the local law." In the case of the United States v. Morrison, 4 Peters, 124, where the question arose on the construction of a statute of a state, in regard to the interpretation of which it was admitted by the court, that " different opinions seem to have been entertained at different times ;" under which state of the facts, the circuit court of the United States, for the east district of Virginia, made a decision and construction one way, (Chief Justice Marshall presiding,) s ibsequently to this, the same ques- tion was decided differently by the highest court of Virginia ; and the case not yet reported, was quoted in manuscript, when this court. Chief Justice Marshall pro- nouncing the opinion, reversed his own judgment below, upon this single decision just made by the state court, on a construction of their statute in regard to which much difference of opinion had before prevailed. In delivering the opinion of the court, Chief Justice Marshall, after referring to the decision by the circuit court, said : " A case was soon afterwards decided in the court of appeals, in which this question on the execution law of the state was elaborately argued, and deliberately decided. That decision is, that the right to take out an elegit is not suspended by suing out a writ of fieri facias, and consequently that the lien of the judgment con- tinues pending the proceedings on that writ. This court, according to its uniform course, adopts <,nat construction of the act which is made by the highest court of the state." In Green v. Neal, G Peters, 291, when this court had twice decided in a certain manner the construction of a law of Tennessee, and the highest court of that state, by a single decision, ruled tiie same point differently, this court, in 1832, over- ruled its own two former decisions of this question, and adopted the last and recent decision of the supreme court of Tennessee. The very question raised was whether the state decision was merely entitled to high consideration or was con- clusive ; and the court expressly decided that " where a question arises under a local law, the decision of this question by the highest judicial tribunal of a state should be considered as final by this court." This was a strong case, especially as the state decision adopted in that case, was a single decision and of recent date, and opposed tn previous and contrary decisions of the same question by the same state tribunals. But the court recognised the obligatory character of the state de- cision, even in a case "where the state tribunals should change the construction," .■^ i Groves et al. v. Slavghter. xlvii Btahlislied by tnstrui) lejris- I to give effi- mit tliJH (Ii8> 'jcpositor of iiliiig before dniitted timt n must Con- or does not ents. That tber is to be nn." Such BApouuding /tronoumcd ionstruction ite courts;" >rrinc laic." for money, 50 Marsliall unding the I think, the instruction een settled in the uni- f the local e question •etntion of have been it court of nstruction ame ques- se not yet 'shall pro- ' decision to which on of the lit court, hich this liberately ended by lent con- uniform court of a certain liat state, 32, over- d recent sed was was con- under a f a state cially as nt date, le same state de- letion," nltliough in such a case of contradictory decisions by the same state court of the same question, they might possibly not corisid'^r a " single adjudication" as conclu- sive, in such a case, we have seen Chie> Justice Marshall's course was to wait, if possible, for further proceedings in the state courts; but where, as in the cases in 4tli and 2d i'eters, there was a single decision on the construction of a state law by the highest court of a state, ((••^iiHicting with no previous adjudication of the saiite tribunal) and a decision just uiti'le and in one case not yet reported, and con- trary to a previous decision of the same question by the Chief Justice himself, he at once adopted these single do isions of a state court, and one of them made by a divided court, an svltling the w of the state, and as conclusive and obligatory, and "eiii[)liatically" so, os regards a constniction by the highest court of a state of ita Ntutt) constitution. And here I would uine respectfully, although it is unnecessary to go so far in this case, is not the last decision of the supreme court of a state ex- pounding a state law, absolutely obligatory, even although it may conflict with a previous decision of the some tribunal ? I'he court in the above case say ; "Are not the injurious effects On the interests of the citizens of a state, as great in re- fusing t(/ adopt tlie chani^r, of construilion, as in refusing to adopt the first conslruc- tion. A refusal in the one case, us well as in the other, has the effect to establish in the state two rules of pro/icrtij- Would not a change in the construction of a law of the United States, by this tribunal, be obligatory on the state courts.' The statute, as lost r/poundrd, would be the law of the Union; and why may not the same etlect be given to the last exposition ol' a local law by the state court .''" Chief Justice Marshall, in 10 Wheat. 159, says: "This court has uniformly professed its disposition, in cases depending on the laws of a particular state, to adopt the construction which the courts of the state have given to those laws. This course is founded on the principle, .supposed to be nnivcrsally rcroirnised , that the judicial dep.artment of every government, wiiere such department exists, is the appropriate organ for construing the legislative acts of that government. Thus, no court in the universe, which profcfsrd to In: fforernci' hij prinri/ile, wouW, we presume, undertake to say that the cotirts of Great Britain, or of France, or of any other nation, had mis- understood, their own statutes , and therefore erect itself into a tribunal which should correct such misunderstanding. We receive the construction given by the courts of the nation as the true sense of the law, and feel ourselves no more at liliertij to depart from that construction, than to de[)art from the words of the statute. On this principle, the construction given by this court to the constitution and laws of the United States is received by all as the true construction; and on the same principle the construction given by the courts of the several states to the legislative acts of those states, is rrcr.iecd, us true, unless they come in conhlct with the constitution, laws, or treaties of the United States." Why then should this court presume that the highest judicial tribunal of our state "had misunderstood" their own constitu- tion, and therefore that this court " should correct that misunderstanding." Is this court more familiar than the highest court of our state with the policy of the state as regards the introduction of slaves as merchandise ; are they as likely to know the true intention of the framers of the coi..stitution of our state as regards the clause in controversy as the distinguished judge who delivered the opinion of the court in our favour in this case, and who may be said to have framed and moulded into its present form that very clause as a member of the convention which franied the constitution, and as chairman of the very committee to whom the clause was con- fided .' Chief Justice Marshall Miimliall coiiMiilfm it an iiior*^ " r.Mi'iiA'i'icAi.i.t " the rule in all <-iis<>m of tlu< (■onNtriictioii of a jttiitt* coiiNtitiitioii. Hut if lIuTt* be any one cant! innri' tiiun nil ntluTH in winch tht* ruli> hIidiiIiI ht> rijjidly upplicd, it is in local ifum'.iiins us to nhircrij, a i|iifMtiiin in itHcll' mo peculiarly local, mo entirely d«« pendent upon stale I.iwh, iind in rc);ar(l to which to eHlntdish "two ruleH ol' proper- ty" in the name Ntate, the one liy IhiH court and the other liy the Ntale trilMinaU, would he atleiuled willi miu^Ii I'litul conHcfpienceH. See (i Wheat. 127 ; !> I'elem, 2M0. And now Ibr the llrst time, alter llie lupse of more than half a century, Ih a ditVerent rule aHked to be applied to the hiirhext judicial tribunal of MiHHiHiiip[)i, and th« state itHelf to h(> humiliated by a diHcriuiinution ho oiliouM and utijuttt. Hut the decii^ion upon which we rtdy iH Maid to he extra-judicial. In not this, ns regardi< thiw case, a mere I'ornuil diHtiiiclion ? The chancellor, in the case cited by our o|)ponents, and sent up to the supreme court, (^ave " brielly" his views on this qiif.ilion, for the exiiresH nnil important purpose as he declared, " to put it in train for ultimnte decision." Such was his desire, such the wish of the proffssion, and the true interest id" all parties, that an " ultimate decision" should be inude by the liiijliest court of the stale, so as to setlle the law upon the i|uestion. The co irt expressly declare, in their opinion, that this |ili<- I'l-liTu, 280. y, iH a (liferent iHiii|i|ii, and tli*< t. In not tliJH, na B CMse cited by 11.. ■' liiH Views on I. " to put it in the |)ro(t'8Bion, lid l)e inude by in. 'I'lie CO irt Unit caiie, ai d (uid ilitirmini: o bei'iiiise the le jiidffes who t" liiM unliiwfiil d that it was a ('fence both in lut; mid HO far nee a decision iw and equity. Dsition, unani- •f the slate, of tlliiiir the law ia deep regret ndvance of a ecision a few in the niean- pnn a inonied ealon, of the sliiiidirig and 0111 2 Peters .' of the consti- ipuitrd for a l)y a (iivided f their own not a formal, \vn constitn- li''. in the It this term, s of a state, 1 i And, if intellectual nflicts. what heir printed oes contain merchandise ifi within ita iimitii; than th«r« rnninins, in the iaiit plaon, to be conHidored fourthly, ■ ^riiVH and niiportjiiit i|iieNti(iii, wliii'h thiM ciiiirt y. ill have to deride ; and that ix, whelhiT it it) I otnpelent to any ulu'ie in thn iJiinin, by its Heparate authority, either in itM coniitiliilioii or ito lawM, to re|futut« conmiercM anion); the HWeral Htati*M, by enartiii|{ and etifori'inK mirli a prohiliUioii ' 'I'lie coMHtitiition of the I'liited State* vestrt in conffrcHit llie power ' to reinitiate (toiiiiiit'ri'e with f'irei}rn natioiiH, and BUionif llie tteveral Htalt h, and with the linliari trilieH.' 'Chat power niUHt be re- garded u (>x('|ii.sive|y poHHi-xHi'ii liy con^rreHU. The innnici|ial lavvs of a Htate may, perhnpN, decide wiiat Hhall be the HiibjeutH of property ; but when tiiey have so derided, when they liave ntaiiiped the chararter of property on any particular niovablex, tliey cannot interdiiH tlie removal ot' Hiniilar iiiovalili^s aH inerchandixe from any "llier Htate, wlione laws iiIho recognise Ijieni as property. Much an inter- dictioti would be a regulation of comiiierce among the statex ; and if a Htate can make it, it may prohibit the inlrnduction of any produce from another state. Houth Carolina may prpoiii-iits, that this is indeed, " a ^ravf. and importnnt ques- tion ;" the most so in my juijgiiient which haw ever been brought u|) tor the deter- mination of Ihi.i court. The power to legulate commerce among the states it ''supreme and e.Yclusive," it is vested in congress alone; and if under it congresi may forbid or ^lUihori/e the transportation of slaves from state to state, in defiance of state aullioiily, then indeitd, we shall have reached a ciisis in the abolition con- troversy, most alarming and inonientous. In their petitions to congress by the abolitionists, they assert the power here claimed, and call upon that body to exercise it by legislative enactments, in regard to the sale and transportation of slaves from state to state. These petitions have been repeatedly rejected or laid on the table, as seeking an object beyond the con- stitutional power of congresH, by overwhelming majorities of both houses; but if this court, as the interpreter of the constitution of the Union, in the last resort, now inform congress that this power is vested in congress ^lllll. no one can pre- dict the consequences. Let it be observed, also, tlii whilst all these laws of all the slave-holding slates on this subject are asked to be pronounced unconstitu- tional, the lawH on the niinie wiibject, of the "free slates," as they are designated by our oppoiu^nts, are sought to be placed above thw- power of congress on thia question. A distinction is thus directly mat.4e, by our opponents, between the "free states" and the "slave states," os contradistinguished in their brief on this question ; and the " free states" are asked to be regarded as sovereign, and the " sl.ive states" as subject states, upon all the points involved in this controversy. Thus it follows, that the contrai-.t sought to be enforced in this case, could not be entorceJ if made in Massachusetts, because prohibited by her constitution , but that the same identical contract can be eiitorced if made in the state of Mississippi, although "ixpressly prohibited by the constitution of that state. Massachunetts, then, possesses sovereign and absolute power ov^r this subject, and Mississippi no power whatever. The constitution is then not to have tlie same uniform effect throughout all the states, as regards the supreme and exclusive jiower of congress to regulale com- merce among the states; but this power is to r. iige undisturbed tbrouglioiit ill the "slave states," striking down all their laws ami constitutions on this subjeci. uhilHt the same power is arrested at the limits of earli one of the " free states " ot' this Union. Such i.s the degrading attitude in which every slave-holding slate is placed by this position. But, let me ask, is not the admission of our opponents, that this power of congress cannot enter the limits of the " free states," conclusive ? The history of the constitution tif the Union shows that the want of uniformity, as re- gards regulations of commerce, was the great motive leading to the formation of : \ 1^ I'; ! n , 1 Groves et al. v. Slaughter. that instrument. It was the sale cause assigned in the resolutions of Virginia (of Mr. Madison) n( 1785 and 1786, as a consequence of which was assembled the convention which framed the constitution of ttie Union. 9 Wheat. 225. To Mr. Madison and to Virginia belong the undisputed honour of assembling that conven- tion; and the sole object avowed in the Virginia resolutions was, by the adoption of the constitution, to procure for all the stales " uniformity in their commercial re- gulations." Virginia had endeiivoujed, prior to tht adoption of the constitution, to regulate commerce between her ports and those of oilier states and nations, but she found that these regulations only diove lliis commerce to the rival ports of Maryland. She negotiated with Maryland to adopt similar regulations; but Mary- land ascertained that she could not adopt them without driving her commerce to Pennsylvania, nor Pennsylvania without New York, nor New York without New England. Absolute and perfect uniformity was required to give due effect to regu- lations of con-merce among all the states; and hence the call of the convention which formed ihe constitution of tiie Union, at the in.stanoe of Virginia, to establish this uniformity. If, then, this power to regulate commerce among all the states upon the principle of perfect uniformity, cannot, as regards the transportation and gale of slaves, have the same uniform effect in all the states, but can be exerted in and between some states only, and not in others, it is a conclusive argument, that aa regards this locii"; and peculiar question of slaves, and their sale and transporta- tion from state to state, was never designed to be embraced under the authority of congress to regulate commerce among the states. The power to regulate com- merce among the states, :s a power to regulate commerce among all tlie states ; and by regulations of perfect uniformity, applying to all, and exempting none. But Massachusetts, it is conceded, may, as regards the transportation into, and sale of slaves in that state, exempt herself from the operalion of the power of congress to regulate commerce, and from all laws of congress on that siiiiject. Yet this power is not only to operate with perfect uniformity, but is (iecjared by cur oppo- nents to be "supreme and exclusive." And may this power be tlins struck down as regards a single state, by the operation of state laws and state authority ? Does any one state possess the authority to exempt herself from a power vested in con- gress alone, and prohibited to the slates.' Is this the tenure, at tlie will of a state, hy which congress holds its powers, and especially those which are " supreme and exclusive." It is said, Massachusetts may exempt herself from the operation of this power, by declaring slaves not to be property witliin her limits. But is there any way in which a state may exempt itself from the operation of a power vested in congress alone ; or does this exempting power dei)end on the mode in which il is exercised by a state? But Massachusetts, it is said, may exempt herself from the operalion of this power of congress, by declaring slaves not to be property within her limits ; and if so, may not Mississippi exempt herself in a similar manner, by declaring, as she has done, that the slaves of other states shall not be merchandise within her limits. Cannot the state say, you may take bacli liieae slnves from our limits, but they shall not be an article of merchandise here ; or may she not say, your slaves in other states shall not be introduced for sale here, or if so, our laws will emanci- pate them; or as Maryland now does, send tliein to Africa, if they will go, and if not, continue them as slaves in the state, but annul tlie sale by the importer? And must the state have previously emancipated all negroes who had been slaves within her limits, in order that she may bo permitted to emancipate or forbid the sale of other negroes introduced as slaves from other states? A certain number of ne- groes are now slaves in Mississippi, and articlej of merchandise by virtue of state laws and state power, within her limits. Now it is conceded, that the state may declare all these not to be slaves, or not to be merchandise, witiiin her limits. Yet it is contended she may not make the same declaration as to the negroes of other states when introduced into the state. A state may, it is conceded, establish or abolish slavery within her limits; she may do it immediately, or gradually and prospectively; she may confine slavery to the slaves then born and living in the state, or to them and their descendants, or to those slaves in the state, and those introduced by emigrants, and not for sale, Groves et al. v. Slaughter. li or to thofle to be introduced witliin a certain date. All these are exercises of the unquestionable power of a state, and over which congress has no control or super- vision. Or may congress supervise tlie state laws in this respect, and say to Mas- sachusetts, and the other six states, who with her have aboiislied slavery, slaves from otjier states shall not against your laws be sold within your limits; hut in all the remaining nineteen states where slavery does still exist, your laws against the sale of slaves from other states, shall be nugatory. Or may congress again, as be- tween these nineteen slates, say to New Jersi^y, Pennsylvania, Ace, you have con- fined slavery to the slaves already within your limits, and make all born after a certain date free ; slaves from other states shall not therefore be sold in your states, but in all the other stales, vvliere the existing slaves, us well as their offspring, are held in bondage, all otiier slav(!S may be sold within your limits, from other states; if this be not so, slaves from oilier st-ilcs may be sold in Pennsylvania, Connecti- cut, Rhode Island, and New Jersey. Negro men who are held as slaves elsewhere, cannot be imported and sold as slaves in these states; because although negro men now there, are held and may be sold as slaves, yet the descendants of the female slaves, if there be any born hereafter, are to be free. And can it be seriously con- tended tliat this is so, and that upon an examination of the various conflicting pro- visions of state laws in this respev-t, as to slavery within their limits, shall depend the question whether congress, against the consent of the states, shall force upon some states, and not upon others, the sale of slaves within their linsits, under a general comprehensive, uniform, supreme, and exclusive power to regulate com- merce among all the stales. The power to declare whether men sliall be held in slavery in a state, and whether those only of a certain colour, who are already there, shall be held in slavery, or be articles of merchandise, and none others, or whetiier others introduced fnini other slalfs sliall also be held in slavery, or be articles of merchandise within her limits is exclusively a slate power, over which it never was designed by the coiistilulion, that congress should have the slightest control, to increase or decrease the number who should be held as slaves within their limits, or to retard or postpone, or influence in any way, directly or indirectly, the ques- tion of abolition. Such a power in all its effects and consequences, is a power, not to regulate commerce among the states, but to regulate slavery, both in and among the states. It is abolition in its most dangerous form, under the mask of a power to regulate commerce. It is clearly a power in congress to add to the number of slaves in a state against her will, to increase, and to increase indefinitely, slavery and the number of slaves in a state, against her aulhonty. And if congress pos- sess the power to increase slavery in a state, why not also the power to decrease it, and to regulate it at pleasure .' Now it is a power as conceded to increase slavery against the will of a state, within its limits, whence it would follow, that if a slate desires more slaves, congress, under the same power, may forbid the transportation of slaves from any stale to any other state, and thus decrease slavery as regards any state, against her will and pleasure. The truth is, if congress possess this power to " regulate" the transportation and sale of slaves, from sta:'' to state, as it may all other articles of commerce, and slaves are to be placed on the same basis, under this supreme and exclusive power to regulate commerce, authority over the whole subject of slavery between and in the states, woulil be delegated to congress. And yet how strangely inconsistent are tiie arguments of the abolitionists: they say men are not property, and cannot be property by virtue of any Ipws of con- gress or of ihe stales ; and yet that as such, commerce in them among the slates may be regulated by congress, and by congress alone. We say, the character of mer- chandise, or property, is attached to negroes, not by any grant of power in the con- stitution of the United Slates, but by virtue of the positive law of the states in which they are found ; and with these stales alone rests the power to legislate over the whole subject, and to give to theni, or take from them, either the whole or from any part or number of them, those already there, or those that may be introduced thereafter, in whole or in part, the character of merchandise or property, at their pleasure, and over all which state regulations congress has not the slightest power whatever. That this is so, follows from the admission, that a state can abolish slavery, and lii Groves et al. v. Slavghter. li i I i " l!lii i fc i \ aij I i ! ! . I make all the slaves within her limits cease to be property. Massachusetts, it is said, may do this; and may, when done, pievent the sale of slaves within her limits. But may she therefore declare that iiorses, or cuttle, or cotton, or any other usual article of commerce, shall not be property wllhiu her limits, and thereby pre- vent the sale by the importer of similur articles, introduced from abroad, or from any state in the Union within her liiiills.'' Not unless she can abolish property and commerce, so far as she is concerned with all foreign nations, and witli all her sis- ter states, or regulate it at her pleasure, or prescribe the articles in regard to which it shall exist. As to those universal articles of commerce, known and recognised in all the states, and bought and sold in all the states, and the importation or exportation of which could be prohibited by no state ; it was right and proper that the power of congress to regulate commerce among the stales should apply, operating as such regulations would, with perfect equality, and uniformity upon all. But as regards slavery, which was a local matter, existing only in some states, and not in others, regarded as property in some slates, and not in others, it would have been most unjust, that that very majority which did not recognise slaves as property in their own states, should by acts of c )ngress regulate the transfer of them, and sale in and among other states, which did regard them to a certain extent as property. That the very states which refused within their limits to recognise slaves as property, should claim the power by tiieir votes in congress, to regulate their transportation and sale in other slates, is preposterous. They claim the power first to exempt themselves from the alleged power of congress, to authorize or for- bid commerce in slaves, and then assume the authority to apply this very power to other states, which prohibit the traffic, because they have not emancipated all other slaves already within their litnits. Nay, tlie claim is still more preposterous ; it is, that this power may be thus applied, by these states in congress, in Missis- sippi, but negro male slaves shall not be imported or sold in Pennsylvania, or New Jersey, Connecticut, and Rhode Island, because although the negro male slaves already there are continued as slaves, and may be sold as such, yet the descend- ants, should there be any of the female slaves, are emancipated. Slavery exists, as shall be shown, and slaves are property and may be sola in these and other states, that are called "free slates;" and if the law of Mississippi, prohibiting the introduction and sale of slaves from other states is void, so is a similar law in all the states above enumerated, and slaves may now be lawfully imported and sold there. Mississippi has said these slaves shall not be merchandise within her limits. Can congress say they shall be merchandise .' Can congress create in any state, the relation of master and slave, not only in cases in which it does not exist, but in cases forbidden by the laws of the states.'' Can it make more masters and more slaves, than the state desires to have wiUiin her limits? And if it can create the relation of master and slave in a state, in cases forbidden by the state laws, why not in the same cases forbid the creation of the relation, or dissolve it, when it al- ready exist .' If congress can increase and extend slavery in a state, against its wishes, why not limit it or abolish it; or can it create, and not destroy, enlarge, but not diminish.' The commerce to be regulated, was that universal commerce in articles of merchandise, regarded as such in all the states, and throughout the nation, and which existed in every state, and which commerce was not to be created or abolished by state laws, but was subject between all the states to the supreme, ex- clusive, and uniform regulation of congress. It was commerce in merchandise, and regarded as such by all the states, and not commerce in persons, that was thus designed to be regulated by congress. Commerce, if it may be so called, in per- sons, was not the thing intended to be regulated by congress, for it was local and peculiar, and not national ; but commerce in the broad and cotnprehensive sense of that term, embracing all the states by uniform regulations, and designed not to de- pend on state laws, but to be as eternal as the existence of the Union, and coex- tensive with the operation of the constitution, which embraced in all its power the whole Union, and all its parts. This power as to commerce being " supreme and exclusive," it could recognise no conflicting or concurrent state legislation, and being a power to authorize and Groves et ah v. Slaughter. liii their enforce this commerce in and among ull the states, and from siiit; to state, it could compel, as this court have decided, every state tu permit the uale by the importer of all theHe articles of commerce within her limits. If slaves are articles of com* merce, in view of this power, congress can force their sale by the importer in every state; for no state, if these be urticles of commerce in view of this power, can remove them from this liut, by declaring them not to be property within her limits. And if a state may bO defeat this clause of the constitution, as to one class of articles embraced witliin the commercial power, by declaring them not to be property within her limits, she may make the same declaration as to any or all other articles embraced by this power of the constitution ; forbid their importation or sale within her limits, and thus regulate at her pleasure, or annihilate the com- merce between that state and all the other states. It follows then as a conse- quence, either that each slate at its pleasure may, as lo that state, annihilate the whole commercial power of congress, by declaring what shall or shall not be pro- perty within her limits, or that slaves were designated by the constitution as " per- sons," and as such, never designed to be embraced in the power of congress to regulate commerce among the states. The commerce to be regulated was among the several states. Among what slates ? Was it among all, or only some of the states P Was it a national or section.il commercial code, which congress was to adopt .' Was it to operate between Virginia and Mississippi, but not between Vir- ginia and Massachusetts? Was 'I a legulation that would operate only between two stales ; but not as between one of these slates, and another remote or adjacent state ? Was it a regulation confined to particular stales, and to be changed by those states, as from time to time they might change their policy upon any local question, and was it a local or a i»;>neral commerce .'' Could it regulate by com- pulsory enactments an inter-strti,' -erce in particular articles between certain states, because tiiose stales perrm . internal covimerce in similar articles; but be authorized to e.vtend no simih ' ' lions to other states forbidding such inter- nal commerce.'' If so, congress must look to state Inios to see what articles are vendible in a stale, or what internal commerce is authorized by it within its limits, before it can apply a general icjrulation of commerce to that state. Or does the authority of congross to regulate the external or internal state commerce, depend upon the manner in which a stale e.xercises its own power of regulating its internal commerce.'' If so, and this be tiie role as to slaves as embraced in the commercial power, it must be the same as to all other articles embraced in the same power ; and the power of congress in regulating commerce among the states will depend upon tlie permission of each stale in regulating its internal commerce. But not only was this nnil'ormity in rsgulations of cotinnerce required by the nature and national object of the grant; but the constitution, in the same article in which the power is given to congress to regulate commerce among the states, expressly declares, that " JVw preference shall be given by any regv.latiou of commerce or revenue, to the ports of one slate over those of another." Now, if Massachusetts and Mississippi both forbid by law the introduction of slaves as merchandise, and congress enact a law, or lliis court make a decree, by virtue of which, slaves are forced into the ports of Mississippi for sale, but cannot be forced for the same pur- pose of sale into the ports of Massacliusetts, a direct preference is given by a " re- gulation of comniene," to tiie ports of one state over those of another. It is a preference, if one state may ba permitted to exclude from introduction for sale witliin lier ports, what anotiier slate is compelled to receive for sale. It is a preference which is asked in this case, to follow as a "regulation of com- merce," by virtue of this very provision in the constitution itself, and in the absence of all congressional enactments, as if the constitution created these very preferences as to commerce, which it was the very object of that instrument to prohibit. As, then, it is conceded by our opponents, that the laws of Massachusetts do prohibit the introduction of slaves in her ports, and are constitutional, the same admission must follow as to the laws of Mississippi, forbidding the in- troduction of slaves in her pons; or a preference will be given by the conatitution B 8 Iiv Groves et al. V. Slaughter. i\ ■■ itself, by " a regulation of commerce," to the " ports of one state over those of another." But these state laws are not regulations of commerce, but of slavery. They relate to the social relalions which exist in a state ; the relation of master and slave ; they define the " persons" to whom that relation shall be extended, and hov/ and under what circumstances it shall be further introduced into the state." Each state has exclusive power over the social relations which shall exist, or be introducbu 'vithin her limits, and upon what term nd conditions, and what per- sons or number of persons shall be embraced with .1 these regulations. The con- dition of master and slave is a relation ; it 13 universally designated as the relation of master and slave ; and whether this relation shall be confined to the slaves already within the limits of the state, or be extended to others to be introduced in future, is a matter exclusively within the power of each state. The relation of master and slave, of master and apprentice, of owner and redemptioner, of pur- citaser and convict sold, of guardian and ward, husband and wile, parent and child, are all relations depending exclusively on the municipal regulations of each state ; and over which, to create or abolish, limit or extend, introduce or exclude, -^r regu- late in any manner whatever, congress has no authority ; and congress can no more say that a state shall have forced upon her more slaves than she desires, be- cause there are slaves there, than that a state shall have more apprentices than she desires, because there are apprentices within hor limits. 1 speak as a question of law, and not as instituting any moral comparison between slaves and apprentices ; for from the ranks of the latter have risen some of the greatest and best men, and purest patriots. The master has the right, not created by the constitution of the United States, or to be regulated by it, but created and regulated by state laws, to the services of the slave for life, the time prescribed by the laws of the state. The master has the right to the services of the apprentice for the time prescribed by the laws of the state; and both, if t'le state permits, may assign to others their right to these services under the directions of state laws. Can therefore the right to the services of an apprentice, assignable in one state, he ar>signed in another state against her will, with the introduction of the apprentice there, because the services of other apprentices already there are assignable in that state .'' Under the laws introduced into at least two of the free states of this Union, male- factors might have been sold for a term as long as life, and their services might be assignable for life by 'he purchaser at public sale, to any third p- rson whatever; these malefactors, in th^ languag- of the constitution of the Union in regard to slaves, were " persons bound to service" for life, and their services for life assign- able by their masters; and yet could these malefactors, thus assignable, be intro- duced into and be lawfully transferred in any other state, against her laws, hecau^^e other malefactors already there were there assignable ; yet, a malefactor bound to service for life, purchased by his master at public sale, and liable to be sold by his owner, is as much his property in contemplation of law, as the slave can be of his master. He is in fact a slave, having forfeited his liberty, and subjected himself to perpetual services by his crimes ; a manner in which the most rigid moralists admit that servitude may be justifiably established. Yet such slaves cannot be transported and sold from state to state ; though by the very constitution of Ohio and other of the free states, " si.AVEnv" is expressly authorized therein, " for the punishment of crimes." It does not exist in Mississippi as in the free states, only as a " punishment for crimes," but from a state necessity, equally strong and pow- erful ; the necessity of self-government, and of self-protection, and as best for the security and welfare of both races. Slavery in Mississippi is a relation of perpetual pupilage and minority, and of contented dependence on the one hand, and of jruardian care and patriarchal power on the other, a power essential for the welfare of both parties. With us the slaves greatly preponderate in numbers, and it is simply a question whether they shall govern us, or we shall govern them ; whether there shall be an African or Anglo-American government in the state ; or whether there shall be a government of intelligent white free men, or of ignorant negro slaves, to emancipate whom Groves et al. v. Slaughter. W would not be to endow them with the moral or intellectual power to govern them- tielvea or others, but to sink into the same debasement and misery which murks tiieir truly unhappy condition in tlie crowded and pestilent alleys of the great cities of the north, where they are called free, but tliey are in fact a degraded caste, sub- jected to tlie worst of servitude, tlie bondage of vice, of ignorance, of want and •nisery. And if such be theit condition where lliey are lew in number and sur- rounded by their sympathising fiiends, how would it be vhere there are hundreds of thousands of them, and how in states where tliey greatly preponderate in num- ber P Tlieir emancipation, where such is llie condition of the country, would be to them the darkest abyss of debasement, misery, vice and anarchy. And yet to pro- duce this very result, is the grand object of that party in the north that demands of congress ♦o regulate the slave trade among the states, not really witii the view to proliib t that traffic, for it is r/ohibited by tlie slave-holding states, but with an ul- timate view to emancipation as an incidental consequtnce from the action of con- gress over this subject. And here let me observe, that an adherence by tiie south to the policy in which t' jy are now united, in abolishing as states the inter-state slave trade, and the supjx -t of that power and of that policy on the part of the states, by the decree of thi i ".ourt, and tlie denial of the power of congress, will do much to secure the continuuiice of that policy and to silence the most powerful of the batteries of abolition. Another great mistake, maintained in the north by this party, is the ground now assumed in claiming this regulating coiiuiierciul power of congress, that by the law of the slave-holding states, slaves are merely chattels and not persons, and therefore are subjected to the power of congress to regulate commerce among the states. If it be intended to convey the idea that slaves are designed to be deprived by the laws of the south of the quilities and character of persons, and of the rights of human beings, and to degrade tliem in all things to thi level of chattels, of inanimate matter, or of the brutes that perish, it is a radical error, and one that has been too long circulated uncontradicted by the abolitionists. In some of the states, they are designated as real, as immovable property. Is it therefore designed to deprive thein of the power of locomotion, or to convert them into a part of the land or soil of a state.' Far otherwise. Nor does their designa- tion as personal property convert them into mere chattels, and deprive them of the character of human l>eings. In the South this is well understood, and no such meaning is attached to these terms, but in tiie North they are seized on and pervert- ed, as if slaves were regarded and trealeo by us as inanimate matter. No, they are, in every thing essential to their real welfare, regarded as persons ; as such they are responsible and punishable for crimes ; ^s such to kill them in cold blood is murder ; to treat them with cruelty or refuse them comfortable clothing and food, is a highly penal offence; as such they are nursed in sickness and infancy, and even in old age, with care and tenderness, when the season of labour is past. To call them chattels or real estate, no more makes them in reality land or merely inanimate matter, tlian to call the blacks of the north freemen, makes them so in fact. When the constitution of Mississippi, and laws iiade in pursuance thereof, require that slaves shall be treated with humanity, commands that they shall be well clothed and fed, and that unreasonable labour shall not be exacted, are these provisions ap- plicable to a mere chattel w'nch the owner may mutilate or destroy at pleasure? No. Tho. master has no right to the flesh and blood, the bones and sinews of any man under the laws of the south ; thl^ is an abolition slander, and the right is to the services of the slave, so declared er.pressly in the laws of the south, and so re- cognised in the constitution of the United States, where slaves are described as "persons bound to service or labour," and so unanimously decided by the highest court of our state. Jones' Case, Walker's Ml.ss. Rep. 83. Tlie right of the ma:;ter is to the services of the slave, a right accruing only by virtue of the law of the state, and upon the terms therein prescribed. The rights of the maf'ir and slave are reciprocal under the la'" . of the south ; the right of the master is to the services of the slave for life, and the right of the slave as secured by law, to humane and proper treatment, to comfortable lodging, food and clothing, and to proper care io m tvi Groves et al. v. Slaughter. infancy, Bickness's and old age. These are the wages paid, and that must be paid by the master ; and if the doctrine of the abolitionists be correct, that slave labour is dearer than free labour, then higher wages are thus paid in the south than in the north for tlie same amount of labour ; and that it is much higher wages than is paid to the toiling and starving millinns of Europe, no candid man will deny. Let me be accused of making no comparison between slaves and my countrymen, the free white labourers of all the states. No; they are fitted morally and intellectually Tor self-government, and the slaves are not so fitted ; and therefore, even for tliei;' own benefit, must be controlled by otiie's. In truth, then, slavery is a condition of things; iti:, ■ lation, the relation of master and slave, the status ser/i of the Roman and Gieci.'^ w, so designated and recog- nised as a relation in the days of the Jewish Theocrac^ j'v 11 as under the Christian dispensation. By all these laws it was designated a.i a nilation, and as such we have seen it is expressly recognised in tiie constitution of the United States, where slaves are called '^ peisims held to service or labour." How far they shall be so bound is exclusively a question of state authority, and over which the congress of the Union possesses not the slightest authority. The slalt's and the states only can say what per- sons shall be so bound toservice,and when liicy shall be released, and to what persons this relation shall be extended, and whethci' itshall be confined to those slaves already within the limits of a state, or be enlargeil so as to include all others who may be introduced within their limits ; and it is the abolitionists who must wholly deprive the slaves of the character of persons, and reduce them in all respects to the level of merchandise, before they can apply to tiieni the pow. of congress to regulate commerce among the states. If a state or statjs chose to degrade not malefactors only, but a large portion of the present white or coloured race to the name and condition of slaves, could they therefore force them as slaves upon other states of the Union, under the power of congress to regulate commerce .^ Has congress any right to say slavery shall or shall not exist within the limits of the stale of Mississippi ; that slaves from other itates shall or shall not be introduced within her limits.'' Has Virginio, or Penn- sylvania, or any other state, a right to say slavery shall be abolished or eatablished within the limits of Mississippi, and slaves shall or shall not be imp(;rted by her citizen-s for sale within her limits? Each state must legislate for itself alone on this subject, nor has congress nor any oilier stale a right to interfere in any manner whatever. And if Virginia can call upon congress, or upon this court, to compel Mississippi to receive or reject any or all of her slaves for sale, the states of Rhode Island, Connecticut, Pennsylvania, New Jersey, Delaware, Indiana and Illinois, can compel the state to receive all tlieir slaves, still amounting under the last census to many thousands, notvvilh.-itandiiig they may all have been indoc- trinated for years on the principles of abolition, surrounded with its teachers and disciples, and driven by force into our state, would come there prepared by theory and stimulated by revenge, to diffuse their emancipating creed among our slave population ; to render them forever dangerous, worthless, sullen and discontented, and to excite successive insurrections from time to time within our limits. And yet by the argument of our opponents, the state possesses no power to guard her citi- zens against these evils, for if we cannot exclude at our pleasure the slaves of all the states, we can exclude the slaves of no one of the states, and are deprived of the power of self-preservation. And, let me risk, are not the slaves whom the doctrines and principles of abolition have now reached, upon those counties of Maryland, Virginia and K»-tucky, bordering for more than a thousand miles upon the adjacent states of Pennsylvania. Oliio, Indiana and Illinois, unfit for a residence as slaves in Mississippi; and would it not be most dangerous to permit slave traders to drive them also in any number within onr limit? Would thev not contaminate our slave population, and diffuse among them the same doctrines and principles, which, from these bordering counties, have already peopled Canada with a colony of thousands of runaway slaves. In every point of view, the power to prohibit this traffic, is vital to the security and welfare of the people of Mississippi, and cannot be abandoned without surrendering the right of self-preservation. And yet to deprive the state of this authority has been called by our opponents a great con- Groves et al. v. Slaughter. Ivii servative power of the coniititution. Conservative of what? Of the power of the traders in slaves to drive thousandH and hundreds of lliousands of dangerous and discontented slaves, from any or all of these states, as merchandise, within our limits. And what must follow? Who will dare predict the result, or write the prophetic history of that drama which would soon be enacted within our borders. The only clauses under which congress can legislate as to slaves, are the 2d clause of 9 sect., 1 art. of the constitution, 2 sect. 4 art., and the taxing power; in each of wliicli they are spoken of, not a.s merchandise, hut as jirrsvn.i. It is as per- .suHS lliey are enumerated under the census, and as such taxation and representation apportioned according to three-iilths of their numbers, not tlieir rutue. In that section they are described as " three fifths of all other persons;" in the. ttth section, tliey are designated only as "persons;" and in the '2d section of the 4tli article, they are desciibed as " persons held to servi.;e or labour in one state under the laws thereof" Yes, "■««(/«• the laws tl a/;" and not by virtue of any authority of congress to force tliem within the limits of a state. If slaves are merchandise merely, under the power oi tlie constitution of tiie Union, why is it tl.ut merchan- dise taken, or horses or cattle escaping from any one state into any other stale, cannot be surrendered under the laws of congress upon the "claim " of the owner ? Are articles r)f merchandise persons, or |)ersoiis articles of merchandise, in view of any of the powers granted to congress in these provisions ? It is as "persons" they are surrendered in one state when fugitives from another; and it is as "persons" they are enumerated for ap|)ortioning taxiition and representation. If the consti- tution had slaves in view, when power was granted to regulnte commerce among the states, how is it that in none of the debates on that clause, either in the con- vention which framed the constitution of the Union, or in the stale conventions which ratified it, is there the slightest allusion to the existence of any such power? The journal of the convention shows that, this clause, to regulate conipierce with foreign nations and among the states, was projiosed by Charles Pine'- of South Carolina, and that it was adopted as proj'osed by him, with the addition oi the words, as to the liidiun Tribes. Did South Carolina, and did Mr. Pinckney, intend to give thereby this supreme and exclu.=ive power under this article to congress as to slaves? No! T!ie votes of Mr. Pinckney and of South Carolina in that convention, show conclusively that, that slate and Mr. Pinckney were opposed to granting to congress any power, even over tiie African slave trade, even under specified and limited provisions on that subject in a different article. Fortunately, Mr. Pinckney has lived to declare his meaning, and that of llie convention, in a speech made by him in congress on the Missouri qiiesticm, in 1820, and reported in 18th vol. Niles' Register, p. 352; when, as a surviving witness of the views and deliberations of the convention in which he had acted so prominent a part, he bears testimony, spe- cifically, to this very point, that under no clause of the constitution was any such power granted to congress. He Kays: " I have, sir, smiled at the idea of some gentlemen in supposing that congress posse^-ed the power to insert the amend- ment, from that which is given in the constitimon to regulate comviercc between se- veral stairs; and some have asserted tint, under it, they not only have the power to iniiibit slavery in Missouri, but even to prevent the viisfration of slaves from one slate to another — from Marijlanil to Viriri.riia. The true and peculiarly ludicrous manner in which a gentleman from that state lately treated this part of the subject, will, no doubt, induce an abandonment ol" lUla prctenued right; nor shall I stop to answer it, until gentlemen can convince me that migration does not mean change of residence fro, ■! one country or climate to another ; and that the United States are not one country, one nation, or one people : if the word does mean, as I con- tend, and we are one people, I will then ask, how is it possible to migrate from one part of a country to another part of the same country? Surely, sir, when such straws as these are caught at to support a right, the hopes of doing so must be slen- der indeed." We have then, here, at least one positive and uncontradicted witness in our favour, and that the very man who proposed this clause in regard to this power of congress to regulate commerce. Did South Carolina intend, in proposing this power, lu give ■■vtkv I E 11 I \ ' m p. I Iviii Groves el al. v. Slaughter. to congress immediate authority to prevent the transportation of slaves from all other states to that state, when she was tiieii even opposed to the specific and pros- pective power to be exercised, at the end of twenty years, as to slaves from Africa? South Carolina has nlwuys viewed juch a power ns* is now claimed for congress in regard to slaves, with absolute abhorrence; yet, by a new interpretation, this power is given by implication from that vi-ry clause in the constitution of the Union, which was proposed in the convention by South Carolina, and adopted on her mo- tion. The source from which the power emanated, independent of the uncontra- dicted testimony of Mr. Pinckney, who jiropoiied this clause, ought to be ccmclu- sive with every unprejudiced n;ind, that no such authority was designed to be thereby vested in congress. No one can believe that South Carolina, or the other slave-holding states, would ever have conseiiled to the constitution, if by that in- strument this su|)reme and exclusive power had been therein granted to congress ; and it would be a fraud on those stales, a fraud upon the constilulion, a fraud in morals as well as law, now to interpolate by o new construction, at the end of half a century, a power which we all know would never have been granted by at least six out of the twelve states which t'niiiicd the constitution. In 9 Wheat. 191, Chief Justice Mirslmll JiMtlares: "That commerce, as the word is used in the constitutiim, is a unit;" but it is a cipher, if dependent oi» state regulations as lo internal cummercf, or state regolation.'f as to what is property or merchandise ; or if not a cipher, and HillVrent regulations as to the same articles, or operating differently in the several slates can be made by congress, it is not a unit, but separated into as many fractions as there are slates or sections. Chief Justice Marshall tells m: That the cli nil these stiilrs What then follows .-' That a trader in slaves purchased at Baltimore to be sold in Wheeling, Virginia, may transport them in chains through Pennsylvania, the only practicable route by land, to Wheeling, and no law of Pennsylvania can forbid it. Again, a trader in slaves, purchased in Wheeling, Virginia, for Missouri, may drive ther>i through Ohio, In- diana, and Illinois; or from Maryland for Missouri, by taking them through New York and the Lake route across to that stale ; or he might take them by sea, from Baltimore f"- Missouri, to Boston, then to pass them through Massachusetts, by the rail road to Buffalo, for the western route. The slave trader might, in this way, if slaves are embraced in the commercial power, encamp them in chains at Boston, Lexington, Concord or Bunker Hill, and drive them on to their destined market, and no state law can prevent it; and this run he done now, without any act of con- gress, and the state could not prevent it. This the abolitionists would regard with horror and dismay ; but to all this they subject their own states, nay,- as will be shown, they establish not only the slave tiade but slavery there, in their efforts to force their doctrines upon the southern states. At page 196, 9th Wheaton, Chief Justice Marshall says : This power in con- gress as to commerce, is " supreme and exclusive ;" and that the power to regulate "is to prescribe the rule by which commerce is to be governed." At page 197, he says the power to regulate " commerce with foreign nations, and among the seve- ral states, is vested in congress as absolutely as it would be in a single government." So far as regards then this commercial power, the court distinctly declare, that the government of the Union is to be viewed as a single government ; that state bounds- Grotea et al, v. Slaughter. lix riei, and state jurisdiction, and the states theniHelves disappear, so far as this power is concerned, and that so fur, tliu nation is a " Unit." The aiitliority tiieii i)\' Maatmchui^vitH (liHuppuars as regards the exercise of this commercial power l)y this siiiirle government. Si»e ceuseH to exist as a separate stale, HO far as tiiis power is oonci'rned, and elands su fur us rii>firits tlir power towards tiiis single governuient, in tiie same relation in which a counly stands to- wards a slate. Huch is the decision ot' tiie conrl in the very case upon wliicii our opponents rely. As then the power to ri'ifuliite tiie sale and transportation of slaves from state to state is insisted by our opponents to be a commercial power, the states, by this decision, so far cease to exist as states; their separate state jurisdiction and boundaries so f.ir disa|)pear ; the stales become a " Unit," and this povver operates in and amon;r ail the slates, as much as if the slate t^overnments had ceased to exist. What llien becomes of the law of Massachusi^tts prohibiting the slave trade there, or the introduction from oilier slates of slaves for sale there as merchandise, when brought in coiilli('l with this commercial power.' Why, not only would the sale be valid, and transportation through the stale valid, by authority of an act of congress ; but noin,a.i this moviiiit. on the princijile con- tended for by our opponents, and herelolbre adopu-d by this court, that, that com- merce which congress loaves free anil unforbidden, it authorizes as much as by an express law ; the slaiutes of Massacliusells are uuconstilulional, and slaves can now be transported from any stnle into Massacliuselts, and '-old there, or carried through there, for sale in some other state lo wliicli they are uestiiied, these laws of the state being expressly declari^l by (/liief Justice Marshall lo be void, if the commercial power extends to th's ruse; because the siale " is exercising the very power that ia granted lo congress, and is doing the very thing which congress is authorized to do." 9 Wheat. l()i>— 201). And al page 20!), the court say : " To regulate, implies in its niiiure, full power over the thing to be regulated ; it ex- cludes, necessarily, the action of all others, thai would perform the same operation, on the same thing. That regulation is designed for the entire result, applying to those parts which remain as they were, as well as lo those which are altered. It produces a uniform wliolc, which is as much disturbed and diTanged by chaniririg what the regulating power designs lo leave untouched, as that on which it has operated." The exercise of this power then, as well as the failure to exercise it, by leaving free what is not reglilaled, " jiroduces a uniform whale," which the state law can- not disturb; and yet this uiiiforiiiily, thus reijuired in nil the stales by the mere absence of congressional legislation, is coiii|)ietely subverted as ri;gards these slaves, which are embraced, il is said, in the commercial power, and that commerce in them, which congress alone could ri-gulate, and whicli it does regulate by leav- ing free as to all the stales where il diies not legislate, is in jioinl of fact regulated at its pleasure by each stale of tiie Union, and is dependent entirely on state laws. This power, we are told, is not now asked to be called forth to oppress the slave- holding slates wf the Union; but the authority once established, it will recoil upon the free stales with a foice and power which was little dreamed of by the aboli- tionists; and will avail to establish slave.ry and the sale of slaves from other slates in every slate, and the trallic in slaves in and through all the slates by the mere inaction of congress. ]^Jay, if the argument of oar opponents be correct, it is established and exists at this moment. At page 224, 9th Wheaton, the court declare, that the constitution originated in the Virginia resolutions, which they s.iy were intended to produce among the states " an uniform system in the commercial regulations;" and ]Mr. Madison's resolutions, which led to that 'neasure, declare the object to be, as regards all the states, "to require uniformity in the commercial regulations," and prevent the states adopting " partial and separate regulations." These regulations then must be uniform ; this was the very object in granting the power, and the total impos- sibility of such uniformity as to slaves, shows that the power was never intended to extend to them ; and surely Virginia never designed to include them in the commercial power. By the constitution, the rights that were delegated to congress, were delegated m I ; Ix Groves et al. v. Slaughter. ipiiij by all the states ; the rights thnt were prohibited to the states, were prohibited tu all the state* ; and the rights that were not delegated or prohibited, were reserved to all the states : but by the position of our opponents, the right to reguhite the transportntion and siile of shives from state to Ktate, was granted to congreHS only by the slave-holding states; the prohibition to that rt-guiiition by u stale, was a prohibition only to the slave-holditig states, and the reserved power over the regn- lation, was a power reserved by the non-slave-holding and not by the slave- holding states : and yet they all entiTfd the c'liifederacy as equals, and sovereigns, in every respect; and all granted, surrendered, and retained Ihe same power. Up in these terms only of perfect equality, and of subjection, or exemption of all the states from the national power, was the coiiMtitution framrd; and to maintain the distinc- tion now assumed between the slive-holding and non-slave-holding states, by which the last ore sovereign, and the first are subject states on this question, is tf» place the former in an attitmie of degradation, to which no one of these states ever would have assented in forming the constitution. No ' The constitutir)n of the Union was one constitution, witli one uniform operation and construction in all the states, and all its powers were to be enforced in all or none of the states ; and not two constitutions, with two constriictions, one for the Nortli.and the other for the South, (^hanging with geoirrnphical limits, lines, and sections If it be a constitution to be enforced by the Northern against the Southern states, rendering nugatory their laws upon this question, unless they will abandon their local insti- tutions, and conform their policy in this respect to the wll of the North, whilst the same powers of the government are to Iiave no operation within the limits of the Northern states; the constitution would be a memorial of fraud and treachery, and wnuld soon be broken into as many fragments as there arc states or sections of the Union. The whole power as to regulations of commerce being granted by each and every state, and vested by them exclusively in congress; no state cnn legislate or exercise any authority over the subject; and there can be no discrimination be- tween the relative powers in this respect of the several states or sections of the Union. At page 227, 9 Wheaton, tli court say, that this provision as to commerce "carries the whole power and leaves nolhinff far the state to acton;" that it is " the same power which pririfnisltj existed within the stales," which included the power of prohibition ; that it is an authority as to commerce, " to limit or restrain it at pleasure." They expressly declared, that it extended to an " em- bargo," which they had previously defined to be a " prohibition," and as a " branch of the commercial power." If then this power extends to this case, this very decision so much relied on by our opponents, proves that if congress may reyulatc, it may "limit or restrain at pleasure," "embargo," or "prohibit" this traffic; this being the same power pre-existing in the states, and wholly taken from them, and vested exclusively in the nation as a " single government." How then can any state exempt herself from the operation of this power, by declaring such " subjects of commerce" as were within this clause of the constitution, and traffic in which was left free by the only power which can regulate it, shall not be subjects of commerce within her limits, and shall not be imported or sold there in .-" At page 228, 9 Wheaton, the court say, speaking of acts of congress on this subject : " Were every law on the subject of commerce repealed to-morrow, all commerce would be lawful ;" and there being no act of congress declaring this traffic unlawful, from the argument of our opponents, it follows, that this com- merce in slaves between the states is now lawful in all the states of the Union. It. follows also, that there being no power either in the government of the states of the Union to prohibit this slave trade between the states, it is consecrated and pre^- petuated by the constitution. The whole difficulty is solved by Mr. Madison, who tells us in the 54th number of the Federalist, page 236, that the case of slaves under the constitution was " a peculiar one;" and that the constitution "regards them as inhabitants, but as debased by servitude below the equal level of free inhabitants." A i- \ Groves et al. v. Slaughter. Ixi Did then the conntitution of the United StateH design to give to congresM power to regulate coninierne in " inlmbitantH, " in and l)etwt!en the stateB .'' To riffulatCf this court said, nieanit " to preHcribe tlie ruIeH by wliich cornnieice is to be governed," mid lliat " to ri'j,'ulate implit>« full power over the tiling to be re- gulatt^d." Tlien tlie irainurH of tlie cuiiHtitution, aithoui^lt a majority were oaid to liave been so niiicli opposed to slavery, that they would not and did not put the word slavi' in that instrument, yet, by the jiosition on wliioh our op- ponents rely, congress was to prescribe tlie rules and the only rules by which comtnerce in slaves between the states should be refrulateil ; that they were to authorize and direct this trallic, and that they were to keep open the markets in all the slave-holding stales against their consent for this trafHc ; or, in other words, that congress was to piTpetuate the slave trade between the states, and render it eternal in all the slave-holding states of the Union. That congress were ever intended to take the charge, nnich less the exclusive charge of the slave trade between the states, and regulate it at their pleasure, was :i power never intended to be granted in the constitution. But if it be a power to /iirjntiiii/r, it nuif^t be a power to (Icxtroij, and if not to destroy, at least to prescribe ail the rules upon which the trade is to be conducted. Who is to judge of these rules ? Congreh.s, and congress only, by the argument of our oppotients, have the full, supreme, and exclusive power. They may then say, how and by whom slaves shall be taken from stale to slate, and in what number:*, and of what age and sex, and how and to whom they shall be sold by the importer, and on what conditions, and in fact regulate every thing that relates to the transportation and sale. Tlie power, if it exists at all, is plenary; and in the laiigiinge of this court, in 12 Wlieaton, " The power does not depend on the degree to which it may be exercised, if it may be exercised at all, it must be at the will of those who held it." Who then shall Mt! bounds to this unlimited power, who shall restrain it — the states ' Why. we have seen that they have surrendered all jiower over the subject, and that it is vested as completely in congress as if this were a " siiii^lc guri'rnincnt." We are then a single government, by the argument of our opponents, as regards the slave trade between the states, and every vestige of state authority is abolislied. On the 9th of January, 18;{8,our able and distinguished opponent (Mr. Clay), read in his place in the senate, and sustained by a speech, the ibllowiiiii'. iiiiiong other resolutions : " Resolved, that no power is delegated by the constitution to congress, to prohibit, in or between the states tolerating slavery, the sale and removal of such persons as are held in slavery by the laws of those states." — Nat. Intelli- gencer, 18, January 7, 1838. Here it is conceded that this government cannot pro- hibit this trallic. But why not, upon the case so much relied on by our opponents.' It is true congress can impose no tax on exports from any state, but tiiis the court say, is an excepli'^" iVoin the taxing i>ower, and that the power to tax imiiorts is entirely distinci from that to regulate commerce. Although then congress, may not tax expo'ts from the states, by the authority of this case, they may prohibit without a ta.s. Wlmt is an embargo, but a prohiliition, not a tax: and in this case the court say, that an embargo is an "universally acknowledged powir" nf con- gress; and they expressly dechire, that it is a commercial power. As then tlie pro- hibition to tax exports from any state, is a limitation only on the taxing power, and affects and liniits, as the court expressly dechires, in no way the power to regulate commerce among the states, congress miiy, if tl e position of our opponents be sound, and this is a case within the cuinmereial power, lay an embargo on this slave trade between the states, or in other words prohibit it altogether. Grant but tiie first position of our opponents, and tlie case on which they rely, and that the commercial power extends to the sale and transfer of slaves from state to state, and all the consecpiences above stated must follow. But if neither tliegoverriments of the states, nor of the Union, possess this power to prohibit this trade, the power must be annihilated, and this without any grant of the power to congress, or pro- liition to the states, and although it is admitted to have existed in every state, be- fore the adoption of the constitution. But the concession that congress cannot prohibit this trade, admits the whole case, by conceding that it is not within the meaning of the clause, which authorizes congress to regulate commerce. Why P h IXII ■n •■' i Groves et al. v. Slaughter » then nmy not the iitat«i PXprciRt* thin powtT? Tliey are no whern proiiibited to ••xerciHH it in any diinnu of thn uonHtitntion, unloHH it be an an intt-n'm-e from the authority of coiiKroxri to reirulat(t coininerce. Now, 'A' thai inference foiU)WM, it would hi* hecauHo, in th«' liiuKUiiirn of this court, H VVIifat. !!)}», " I he Htate is t-xer- niHin)r the verij fioirfr \hni \h gruixUrd to con^rcMH ;" but if thia prohibition of the importation of nlavort lit* neitlicr the " very power" tliat in ^raiiU'il to con^^reao, nor inrlmltMl in that power, iiow ix tiie state prohibited from exerciHinf itP It is not lirohlliitrd to the t/tafr, unleMH inehiih-d in tlie coinnicrcial power of foiijfreHH ; it is not deleirateil to ooni^re.'iH, unietm in that claiiHe ; iiriice, tlien, hcin^ a power neitlier deU!);ate(i to coni;reHM, nor pr(ihil)iled to the Htaten, it i^4 by the conNtitutioti expressly rcrterved to the Htale in which it pre-existed before the coiislilution wan framed. Uut airain, this power to refruiate c.ninierce is an active power, a power " to prt'Hcribe the ruU-s" liy which lliat coiiimerire may lie conducted, and to enforce liio.so riili'H; but here it is Haiu no ruii- can be |irescribed by coiiirress on tiiiB sub- ject, or enforced, no law can lie pasHid by conifreHH, to re^'iilale thin trade, but nevertlielesH, that the Htales cannot reirnlaie nur prohiliit tliiti trade, because con- jjress has the exclusive power. This is a strange contradiction, congress cannot legislate as to this case, althoufrh it may as to all otiier (rommerce among the states ; but, nutwitliNtanding, the state law i.s void, lieenuMe the power i.s vetted in congress. The power is vested in coiigresH, but neviTlheb'ss it has no power to pass any law on the subject, liut who is it that has the power? Tiiu constitution says con- );ress shall have the power to regulate; and yet it is contended congress have no power to regulate this trade, but neverlheles,s the state law is void, in the absence of all power in congress to legisbile on the subject. It is rendered then njuilirial puwer, to he put in lorco by this court, and not by leginlalion, and yet have the judiciary any power to regulate commerce among the slates.' It is a sullen, dog in the manger power, that can neither act itself, nor peiinit action by any other au- thority. In the 32d number of the Federalist, Mr. Ilaniilton, who was the boldest ()l>ponent of state power, tells us there are but three cases under tlit! constitution, in which a state cannot exercise a power, " where the c(ui8liUiliibited the states from exercising the like authority ; and where it granted an authority to the Union, to which a similar authority in the states would be absolnttdy and totally ci.titruilirlonj and rrpvsr- nant." It is conceded that there is no rri>ris.i grant ol' rirhittim power to congress, or ej/iTcss prohibition to the stales; but it ia contended tiiat the piohibition tif the state power follows in this case, because its exeicise would be the exercise of the same power granted ex'"-lusively to congress; and, therefore, the possessinn of such a power by the state would bo " absolutely and totally contradictory and rejiug- iiiinl" to the possession of the lame power by congress. This ia the argument in favour of this implied prohibition on state authority ; but how is the power of a slate to prohibit this tralllc, " absolutely and totally con- tridic.lory and repugnant" to the possession of the same power by congress, when congress can make no such prohibition .' Congress cannot prohibit, then there is no repugnance in a slate prohibition. It is conceded the power existed in each state, prior to the adoption of the constitution ; that instrument, it is admiltt'd, grants no such prohibitory authority to congress; it prohibits the power no where to the slates; how then have the states lo.st or alienated the power? The power to pridiibit, or limit, or restrain the admission of slaves into any state, is conceded not to be vested in congress, then it must be vested in the states, or the power is annihilated; not by a grant of the power to congress, not by a prohibition to the statet,, but by some new rule of interpretation, under which, hy a conjectural implication, the power has disappeared, without a grant, or without a jirohibilion. But these are the only modes by which a pre-existing state power can be annihilated. By the lOth article. Amendments of the Constitution, "the powers not delegated to the United States by the constitution, nor prohibited by it to the states, are re- served to the states respectively, or to the people." This power then never having been either delegated to the United Slates, or prohibited to the states, is one of the reserved powers of the states, unless this amendment can be rendered a dead Crores et at. p. Slau/ifhtrr. Ixiii letter, by a bron(ii>r cnnitruction tlinn any livretofrre niniiitnined, even by the bobl est uilverNiirirM ol' Mtuti> initliorily, and tlii' iiioHt latitiidiiiniiii int<>r|>r(>tiTM of tliv coiulituijoii. Nor wuM tlii-ri> any ncrcMHity or |iro|)riety, tliut om^^ri'itM Nlioiild hnv« thin |i()Wts wliicli Mr. iM;idi<4on or N'ir^nnin had in view, whrn they |)ro|i<)Hi>d (iiilliiiK ihti conveiilion to rrfuli' thix )T ''iiin|>l'iiniMl nt' ilii> want of huvU a |)ou'er hh to Niavi'N, an a rvaHDii tor ado|itiii(; tli« conHtilulion ; and no Hurh uniform n-gtilatiopM on thatauh- ject, UH bflwiM-n the stalnH, were Kvcr anli(:i|ml('d or pro|)i)si'd. The oonvenlioii was (vtllcd at thi* instancti (d'a Nlavi>-holdin>; nIiiIo, Vir^rinia, niidi>r Mr, Maditinn'it re«(diition, for iIih only exiirt'.iH |Mir|ioHo of trivin<» to ciinjfrfH8 pow^r to adopt " uniform reiruluiiunH" »h to ('iinini<'r(t(> ; and the* power in ([UfNlion wna inHcrtcd in the constilutioti, on the motion of Sontii C'arolinu. itut did tMthor of thoMc Htatei, or any other Mtalp, complain of the non-t'xiatciiL'c of hucIi h power as to wliiveH, or desire that it Hhonld lie (rrnnted to (he >.'eneral {rovernment f Th« power which V'irjfinia ami Sonth (':irolina, and all the HlatcH deHired to lie vewled in cimi^reHs, concerned only that universal eiMihiien e, exlendinir to foreijrii nations, and amonjj all the Hlaten, and etfeclin'r all that Virginia and South Ciindina, or any other Htate desired to be reirulaled by the jr»>nc'ral guvernment, and not the {oral and deli- fate Hubjer.t of slavery; and neither in the debates or proceedinL'u and resolulionH of tlie various states, when deli'jj;iiteH were rlinHen to form their constitution, nor in the resolutions, proc lini/s and debates of the conjiress of tlie old confederacy, on the same sulij-ct. nor in the i;eneral convention which framed, or the various statu conventions which ratified it, nor in the contemporaneous commentaries of the °rce," so as to be included in the construction of a power given to congress, to regulate " com- merce." 11 Peters. 13fi-137. Now this clause speaks of [>ersons, and of persons only; and it includes negro freemen, as well as negro slaves, as is expressly declared by Chief Justice Maishall, in 9 Wheaton, 21(>-217; the term migration embracing the free, and the term importntion, the slaves; and upon this principle, congress has legislated on the subject. However, then, it may have been disputed whether slaves as articles of conunerce were embraced in the commercial power ; no one can pretend that free negroes were articles of sale or commerce, and em- f2 Ixvi Groves et al, v. Slaughter. braned in the commercial power. This appears to me conclusive against the posi- tion that this clause is an exception from the power of congress to regulate commerce. If then this clause be a substantive power, does it confer the authority Claimed in this case to prohibit the transportation of slaves from state to state .'' It is conceded that the term importation applies only to slaves introduced from abroad ; but it has been contended that the term migration does apply to the trans- portation of slaves from state to state. Now this is against the opinion of Chief Justice Marshall, on the point last quoted — upon the ground that migration applies to free negroes, and to voluntary removal, or change of residence by them, and therefore can have no application to slaves. But independent of this decision, is it not clear that the term migration applies to persons coming from abroad, and not a removal from state to state ? This is the true grammatical meaning of the term, but there is still higher authority not heretofore referred to. In the Declaration of American Independence, we find the following clause , " He has endeavoured to prevent the population of these states ; for that purpose, obstructing the laws for naturalization of foreigners ; refusing to pass others to encourage their migration hither; and raising the conditions of new appropriations of lands." Here the term migration, in its true American sense as applicable to our peculiar position as states and aa a nation, is used as embracing only persons coming from abroad, and no other. Now, when we reflect, that many of the persons who signed the Declaration of Independence, were also members of the convention which framed the constitution of the United States, did these same distinguished statesmen use the term in one instrument as applicable only to persons coming from abroad, and in the other as only applicable to persons passing from state to state : thus using the same term to express a totally difl'erent thing in the two cases ? But when the great statesmen of that day designed to designate a passing or removing from state to state, they used very different and appropriate terms to express that object. In the articles of confederation they say : " The people of each state shall have free ingress and regress to nnd from any other state." Here, where they intend to designate a passing or removing from state to state, the terms " ingress and re- gress" are used, and not the term migration. Now, very many of those who framed the articles of confederation, were also franiers of the Declaration of Inde- pendence, and of the constitution of the United States; and is it conceivable that had they designed to regulate the ingress or regress from state to state, they would not have used the language of the articles of confederation, and not a word to which they had given a very different meaning in the Declaration of Indepen- dence. When looking beyond the words lliemselves, to the debates in the conven- tion whicii framed the constitution, we find the construction universally confined to persons from abroad, and Gouverneur Morris and Col. Mason, both staled witiiout contradiction in the convention the fact, that the clause extended to " freemen," and no one suggested the possibility of its being extended to the transportation of slaves from state to state. If, then, this clause be a substantive grant of power, and not an exception to the commercial power, and if, as w liave seen, it does not extend to the transportation of slaves from state to state, lucre is an end to the question ; for here, if any where, the power would have been givesi. But, sup- pose it to have been an exception or proviso to the commercial power, is it any thing more than a declaratory proviso to prevent by a provision, added to this power, ex abundanti cautela, any construction, by which congress could prohibit the miirration or importation of certain per.'^ons ? This was the form in whicli it was first introduced, and the designation of the year 1808, as well as the taxing authority, were added by subsequent amendments. The convention grant to congress tiie commercial and taxing powers ; but to prevent these powers being construed to extend to an autiiority to prohibit t!ie in- troduction of certain persons, such a proviso is proposed, which, by a compromise as to time and taxation, is made to assume its present shape- and this is all that was intended by the obiter dicta before referred to, in which this clause is spoken of as an exception to the commercial power. Such language cannot imply that Groves et al. v. Slaughter. Ixvii the powers granted in this clause would have been included in the commercial power ; for we have seen that this power did not embrace an authority to lay duties or taxes on importation, nor extend to j)ersons of any description, much less te freemen as articles of commerce. Hut, even if this clause, as an exception to the commercial power, would, but for this proviso liave been embraced in that power, then the extent of the power as thus indicated by implication, would not go beyond the exception itself; and this, we have seen, did not embrace the transpor- tation of slaves from state to state. Such being the case, what would be the extraordinary implication to which we are asked to resort .' Why, that although the clause in question does not extend to the transportation of slaves from state to state ; yet, as it does extend after a certain date to the importation of slaves from abroad, and as but for this exception, congress, even prior to that date, would have possessed this power as to such importation from abroad under the authority to regulate commerce, therefore, congress always possessed the authority under the commercial power to prohibit the transportation of slaves from state to state. Hence, it would follow, that by this construction, congress, immediately on the adoption of the constitution, without waiting till 1808, could at once prohibit the introduction of slaves from state to state, and yet a power so tremendous, now ex- tracted by implication, was never even alluded to in the convention, nor would the constitution ever have been formed, if such a power had been asked to be vested in congress. Would the slave-holding states have consented that congress should forbid the importation or exportation of slaves from state to state, and that congress alone should regulate their policy in this respect ? Especially would Georgia and South Carolina, that would not join the Union unless the African slave trade were kept open from 1787 to 1808, ever have agreed to a constitution, by which, i?H- 7nediately on its adoption, they could not introduce either for sale or use slaves from an adjoining state ; no, not even when acquired by gift, devise, or inherit- ance.'' And, now let be observed, that, as it is shown, the power to prohibit the transportation of slaves from state to slate does not follow from tiiis yth section, and to commence in 1808 ; that if it existed at all, it was as an inference from the commercial power which went into effect immediately. No one then can believe that any such power was ever designed to he vested in congress. It never could have been directly granted, and now to interpolate it by implication would be a fraud on the parties to tlje constitution. But there is another reason why this clause is not a mere exception to the com- mercial power. That power this court have declared is vested exclusively in congress, and no portion of it can be exercised by any state even though congress may not have legislated on the subject. Now, liiis clause of the 9th section was admitted in the convention to extend to the prohibition of the admission o{ cvnricts from abroad. Madison Papers, 1 130, 143(). Yet this court have declared, that the states do possess the power to prohibit the introduction of foreign convicts. 11 Peters, llS, 149. If, then, the states possess this power, and it is also vested in the general government, it must be a case of concurrent powers, and of course is not eiiibrn.ced in the commercial power, which we have seen is not the case of a concurrent authority, but of an authority denied altogether lo the states and vested in congress alone. When the constitution was formed we became as to all powers conferred exclusively on congrosn i)y that instrument, as this court have decided, one country ; especially as regards tins cmmiercial power, we were in the strong language of this court, " a single governiiieiit,'' recognising as regarding this power no state boundaries. And yet, in rehition to this very power, migrate, which means a removal from one country to another country, is asked to be construed to mean a removal from one part of a country to auotiier part of the same country; and that too, when, as to this clause considered as an exception to the com- mercial power, the whole country in tirtlt respect was as this court have declared, a " unit," a " single government," knowing no separate state jurisdiction or boundaries. It has been shown that this law is not embraced within the power of congress to regulate commerce ; and this would be sufficient, but I will go further, and prove that it is a power reserved to the states. The reserved powers of the states, com- Ixviii Groves et al. v. Slaughter. prise all those not delegated to the general government, or prohibited to the states. The states were the fountain springs of all the powers vested in congress, and this is a case, which goes to the source of all power, and never was, and perhaps never could be abandoned, without a total surrender of all sovereignty. It is the power of self-preservation ; it is a matter of the police of a state, regarding its internal policy ; a municipal regulation, to preserve the tranquillity, or promote the prosperity of the state, and guard the lives of its iniiabitanta. It is similar in principle to the qua- rantine and health laws of a state, its pauper and inspection laws, and many others of a similar character. It is a local provision for the internal peace or' : security of the .slate, growing out of the inherent and inalienable right of self-preservation, and operating exclusively witiiin tiie limits of the state. It is a j )Vier to guard the state, '' against domestic violence," which not only was reserve« to he state, but to the state exclusively, unless upon its "application" for aid o the govern- ment of the United States. The 4tli sec. 4th art. of the constitution, declares; " Tiie United States shall guaranty to every state in this Union a republican form of government, and shall protect each of them against invasion, and on appli- cation of the legislature, or of the executive, (when the legislature cannot be con- vened,) against domestic violence." It is then witiiin the clearly reserved power of a slate to " protect" itself, " against domestic violence ;" and it may do so by the means of the state itself; or congress, upon the application of tiie state, and not otherwise, may come to its aid in sucli an emergency. In the state then alone resides the power to pass all laws, designed to protect its people against domestic • olence. It is not to wait until the apprehension of domestic violence shall have been realized, it is not to wait until that violence sliall have assumed the form of an "insurrection," but looking forward to the pos.sibility of such an event, it may enact all laws calculated to prevent such a catastrophe. It is true that congress, under tiie 8tli section of the Ist article of the coni-iilution, have power " to provide for calling forth the militia to execute the laws of the l''nto>j, suppress insurrections, and repel invasions." But this clause has no application to this case, and even if it had, cc '1 not interfere with the state law upon this subject. But what is this power of congress in this section .-' It is peculiar and specific — 1st, it relates wholly to insurrections to subvert "the laws of the Union," an insurrection against the government and authority of the United States, and not a case of " domestic vio- lence," which applies peculiarly to a movement against the laws and government of a state. 2d, it is a power only to call forth tlie militia, and the purpose is to " suppress" the insurrection. But it will not be contended that this power applies to a case of" domestic violence," confined to the limits of a state, and conflicting only with its own laws, and its own authority. Each state then possesses the sole power of protecting its citizens, " against domestic violence ;" the general govern- ment protects a state against iiiraslonfroin abroad, without waiting for any appli- cation from the state. But desirable as such protection might be, in case of do- mestic violence, the states were not willing that in such a case the government of the Union should act, except upon the "application" of the state. What then is a case of domestic violence ? Can any one doubt, that a rising of the slaves to as- sume the government of a state, or to take the lives of its citizens, or oppose or sub- vert its laws, would be a case of " domestic violence," to guard against which before it occurred, as well as to suppress it afterwards, is one of the powers clearly reserved by every state. Now may not a slate, as a means of accompliishing this object, prevent the introduction of dangerous, or convict, or insurgent slaves, whose importation might produce domestic violence .' This court determined upon a con- struction cotemporaneous with the formation of the constitution, tlint a state may prevent tiie introduction of malefactors, 11 Peters, 148. This is permitted- as a measure of internal police, to guard the peace of the state, and promote the tran- quillity and happiness of its people. This %-all the slave states have ever done, and in pursuance of such a policy and to effectuate the same object, might they not prevent the introduction of wicked or dangerous slaves, although not yet condemned as convicts by the tribunals of a sister state .' Suppose insurgent slaves hhd been reserved as informers, and never tried or condemned within the limits of a sisier state, Groves et ah v. Slaughter. Ixix none can doubt the power of any state to prevent tlieir introduction, and especially as slaves within their limits. In carrying out the same policy of self-preservation, might not a state have said after tlie Southiunpton massacre, that no slaves front that region, whether witnesses or partici|)ati)rs in that transaction, should lie brought within their limits ; or if particular classes of [lersons importing slaves for sale, had been in the habit of introducing into a stale, wicked or dangerous, insurgent or convict slaves, might not a state prohibit the introduction of slaves for sale, by such persou altogether, especially if the stale liiid endeavoured, (as we have seen Mis- sissippi had done for years,) to prevent, by various requisitions, the introduction, by negro traders, of slaves of liiis description, all which luid proved unavailing; might not the state, iis the most or the only etlectual remedy, exclude the introduction of slaves, by such traders or classes of persons allojrether, embracing thus, in the ex- clusion, all slaves introduced as mercliandise? Engaged us these traders were in this inhuman traffic; transporting these slaves in cliuins from state to stale, for the sole purpose of a sale for prohl ; desirous of increasing this profit by purcliasing the cheapest slaves, which would always be tlie uiosl wicked and dangerous, reck- less of the moral qualities and clinracter of the slaves whom they bought, not for their own use, but to sell for speculation ; templed to buy the most wicked slaves, because always to be purchased at the lowest price, and sold in a distant slate at the highest price, to tliuse who would be ignorant of their dangerous character; inured as these traders were to scenes of wretchedness and cruelty, and entirely- regardless of the means by which they reaped a profit from this traffic, why might we not, as a means of self-protection, arrest this tralfic by forbidding the introduc- tion of slaves as merchandise? Especially when a slate had tried alt other means to arrest the inlioduction of dangerous slaves, and had found the stale, notwith- standing her previous restrictions, inundated by Ihese traders with the wicked and abandoned slaves, the insurgents and malefactors, the sweepings of the jails of other states, might they not wholly exclude the traffic, as the only effectual means of self-preservation ? If experience had demonstrated that it was unsafe to trust with slave traders the introduction for sale of slaves, why might not the stale arrest the importation by them of slaves as merchandise ? But even if they could repose for the character of the slaves upon the traders, there was tliat in the very mode and purpose of in- troduction which rendered nearly all such slaves most dangerous to the tranquillity of the stale. The very manner in wliich these slaves were forced from one state and driven into another, would introduce them with hearts overflowing with bitter- ness, and stimulated to revenge the most deadly, against the seller and the pur- chaser. Such slaves would seek for vengeance, not only by their own deeds, but they would endeavour to inflame the passions of all other slaves in the slate,, who but for their contaminating influence would have remained useful and contented. Who can deny that there was danger arising from such transactions .' T/ic ligisla- tion of all the sUive-hnlding states 's introduced for sale from other states, and stinmlated to revenge bj' the mode of tlieir introduction ; why might not the state, in addition to these evils from the character of the slaves, perceive new and greater sources of alarm, in the overwhelming prepf)nderance in numbers, thus inevitably given to the slave over the white population; and might not Mississippi, situated as she was, find in this rapidly increasing disproportion, a sufficient reason upon the same principles of self-protection, to j)revent tlie introduction of slaves as merchan- dise.' In looking at the condition of •JKt state, it was obvious that the dispropor- tion was increasing in an alarming ratio, that the slaves already outnumbered the whites of the whole state, and in many adjacent counties three to one ; and in many patrol districts, more than twenty to one. Who will dare to say, thai there was no danger in permitting this disproportion to go on rapidly augmenting, and that self- I % \xx Grotii:.^ et ah v. Slavgkter. preservation might not demand the prohibition of the traffic? And vho was to judge of this internal danger, and to guard against it, except the state in which it existed P If a state cannot prevent its becoin'ng a refuge of insurgents, the Botii.y Bay of thti slave iiialefivjtors of other states; i it cannot prevent tho introduction of HJaves of a class, and under nircunistaiices, and in a disproportion inviting tiie overt! row of its laws, and the massacre of its freemen ; if it must ber-.me one vast neirro quar- ter, with only great and extensive plantations, superintended by one oicseer, and owned ti)o often by absentee musters; it does not possess tlie power t > guard the state ajfainst domestic violence or maintain internul tranciuillity. and iti^ not a state and possesses no one reserved rigiit, or attribute of sovereigr f \', if it is tlius de- spoiled of the power of self-preservation. The cases of comparative damriT, above cited, may differ in degroe, but in degree only, and not in principle. If then, in- ternal tranq.iillity ; and self-prctection be legitimate end.s of state legislaiinn, and if such prohibition of the introduction of slaves as merchandise, be one of tin- i.ieans to effect these ends and purpose, if tlii' p'jrpose is lawful as an oliject wf state legis- lation, who can say that these means ave not adapted to the end, and cali ulalcd to secure the object.' Is it not, perhap-, the only means suitable to '.he case, cr at all events, where there is a choice of iiiiii. i b ,■ the state, is it .n it one of those me ns witliin the range of state authoriiy, to •. liict the legitimate iMUjiose of guarding Tgainst i'omestic violence.' Thesf principles are settled in our favour in Mi!.i'-< Case, 11 Peters, 102, wlum tiii.s court decided, that an act of New York, e.tcludir >■; vnnjuMS. v,as cony'itutional. In iriviiig tlie opinion of the court, Jnd^re Harbour said : '• Bui how cu?! fins apply to jiii.-ifK ' Tliey are not the suiijects ol' (;.)mmprne, unJ -o' iieing imporlfd goods, cannr'. i i.i' within a train of rea-miing, founded on the c. r.^tincliun of a power given to coiio^ress to regulate cotniai-rce, and (he iirohibit'iiru lo the -jI ites from im- posing a dutv on imported go(7ds." '• The power to prisw inspection lavi's involves the right to I'Vi'iiine articles which are imported, and are therefore directly the subjects of coiiiiucrce ; ;ind if any of them are found to be unsound or infectious, to cause them to be removi ]. or evna destroyed " " We think it as competent, and as necessary, for a state to iiroviile prccniitioinn ij measures against the moral pesti- lence of paupsrs, vagabond ■ i^nd possibly convicM, as it is to guard against the physical pestilence which may i.rise from unsound and infectious articles imported, or from a ship, the crew of w);i-li may be labouring under an infectious disease." Judge Thomson said : " The powrr to direct the renmval of gunpowder, is a branch of the police power, which unques .nably remains, and ought to remain, with tho states. Tlie state law here is broi: .lit to act directly on the article imported, and may even prevent its Jandin^, bee luse it might endanger the jmhlk. snfely." " Can any thing fall more directly within the police power, and internal regulation of a state, than that which cncerns the care and management of paupers, or con- victs, or any other class <,{ d;' criplion of jiersons, that may be thrown into t'le country, and likelij to eiulaii'/er lis snfctij?" And, he adds, the state may exclude all persons whose admission would ^^ endanarrits safelij or security." Judge Baldwin, in his concurring opinion (Baldwin's Views.) 181, says: "On the same principle, by which a state may prevent the intrnduction of infected persons, or goods, and arti- cles dangerous to the persons or properly of its citizens, it may exclude paupers, who will add lo the burdens of taxation, or convicts, who will corrupt the morals of the people, threatening them with more evils than gunpowder or disease." He adds, " if there is any one case to which the following remark of this court is peculiarly appli- cable, it is this : " It does not appear to me a violent construction of the constitution, and is certainly a convenient one, to consider the power of the states as existing over such cases as the laws of the Union may not reach." (4 Wheat. 195.) " But if the state (in.^pection) law imposes no tax on imports or exports, the prohibition does not touch it, either by requiring the consent of congress, or making the law subject to its revision or control." " The state (in excluding paupers or convicts,) asserts a right of self-protection." " Poor laws are analogous to health ; quarantine and inspection laws, all being parts of a system of internal police, to prevent the intro- duction of what is dangerous to the safety or health of the people." Groves et ah v. Slavghter. Ixxl Here are important principles established, and many of them cited from the ' previous o|)iniuns of Chief JuBtice Mnrbhall. First, a stute law, excluding the in- troduction of convicts or paupers from other states is constitutional; so are health laws, and inspection laws, and all laws of an analogous character, excluding dan- gerous articles or persons. The principles on which these laws are founded, are diroctlv n!i;)licable to tlie case before us ; and altlionirh the laws may have a " con- sideiariK) influence on commerce," or "operite directly on the subjects of coni- nstrco," t'l; y do i>i)t spring from that, but from a higher source, the [ire-exisling c.id Mudcls^Tateil power of a slate, and are not an exercise of the ])ower to regulate f 'iirnerce union : tSii- stutes. That they are founded on the right of " self-protec- linn" "J oiicb stf-c , .'u right to guiird iiirainst " moral or physical pestilence" — to ' t'.f ,',.-oy: • reiiiuv ' or *' prevent the binding" of gniiitowder and oIIut danger- ous articles ; to e.t'.iudo any thing which " might endanger the puljlic salely ;" to prevent tlie introduction not only of paupers and convicts, but that " the principle involved in it, mupt embrace every dtsrripliun which may be liiought to aulanfrtr the siifilij and security of the country," or that may " threaten ' a stale " with iiore evils thr .' gu.; ovvder or disease," and to " all regulations of internal police." We find loo, t;iat uiide; the power of a stale to " rrs^iiliilc puuperism therein," is embraced th'^ jh municipal regulations." The same court, in Jones' Case, Walker's Reports, 83, say : " In the constitution of the United States slaves are expressly designated as persons:" and they add, "the right of the master exists, 7iot by force of the laic of nature or nations, but by virtue only of the positive Una of tlie state." Such is the settled law of Mississippi twice unanimously pronounced by her supreme tribunal. The same doctrine has been pronounced by tlie supreme court of all the states where tlie question has been detonnined. Thus, in the case of Lunsford v. Coquillon, 14 Martin's Reports, 404, the supreme court of Louisiana declare, " the relation of owner and slave in the staios of this Union, in which it has a legal existence, is a creature of the viunicipal lavj." See Law of Slavery, 368 ; Story's Conflicts of Laws, 92, L»7. The supreme court of Kentucky have declared, that " slavery is sanctioned by the laws of this state, but we consider that as a right existing by a positive law of a, municipal character, without foundation in the law of nature." Rankin v. Lydia, 3d Marsh. 470, and this is an acknowledged doctrine of the common law. 2 B. &, Cres. 448 ; 3 D. & Ry. 679 ; 20 State T. 1 ; 10 Wh. 120 ; Com. v. Aves, 19 Pick. Law of Slavery, 357, 363, 367, 368. This court have said, that " The sovereignty of a state extends to eriry thing which exists by its own authority, or is introduced by its permission." 6 Wh. 469; 4 Peters, 564; Bald. Const. Views, 14. Slavery exists only by the autliority of a state, it is introduced only by its permis- sion ; and to contend that it may not be introduced, but may be extended against the will of a state, is strangely incongruous. The principle here quoted has been applied in restriction of the commercial power. In 1824, it was attempted to apply the commercial power of congress to the New York Canals, in relation to boats passing through them, or entering them from state to state, by requiring tonnage duties and entrance fees. Tliat this power could have extended to voyages commencing in one state, and touching at, or terminating in another, is decided by this court; but it does not extend to canals created by the state authority. New York Leg. Res. 8th Nov. 1S24 ; Debate U. S. Senate, 19th May, 1826 ; 3 Cowen, 755. Now, the only reason for this distinction is, that canals are, and rivers are not created by a state ; otherwise the power to regulate commerce, which embraces navigation as well as traffic, must have included them. Now, this power is "supreme and exclusive," and if it extends to slaves, made so only by state authority, it must embrace all the canals, and perhaps all the rail-rorJs of every state. Property in slaves, so far as it exists, is created, not by the la^v of nature or of nations, but solely by the power of the state, and may be abolished at its will ; differing in these essential particulars from other property. So as was said as to other property created by the authority of a state, in state or bank stocks, or bfink notes, or lottery tickets. It is a principle recognised in all the states, and by this court, that their introduction from other Grotea et al. v. Slaughter. Ixxiii BtateB, for sale or circulation, may be prohibited by any state, notwillutandin^f she may have state or UanU. stocks, or baiiii notes, or lotteries of her own, and tiiese luuy be the subjects of lawful ownerslii|> and cunun»-rce in the state. This power being ciuinied under tlie authority of congress to regulate com- merce, the first congress wiiich as.smnbled in 1 78!), as well as every subsequent congress, would have possessed pleiiuiy, supreme and exclusive powerover the whole subject of regulating tiiu IranHportalion ol' slaves froui slate to state. Why, then, during the lap.se of more tiiun half a century, has congress never exercised this power, which was an exclusive and not a concurrent power.' Many of the great men who formed the constitution, were nuwnbers of congress for many years suc- ceeding its adoption. Why, then, did they never e.xeruise, or even propose to exercise the power in question .' They were called upon by petitions, immediately after the organization of the governnient, to exercise, both as among the states and as to foreign nations, the entire power which they possessed on this subject. Why did they not then exercise this power '; IJecause, it was then universally acknow- ledged that congress possessed no such j)ower. In 17t)4, petitions were again transmitted by the Quakers and others to con- gress, calling on that body to exercise all its constitutional powers over the subject ; and these memorials were rel'erred to a comir.iltee of the house, consisting of Mr. Trumbull, Mr. Ward, Mr. Giles, Mr. Talbot, and Mr. (iroves, all members from non-slave-holding states, except Mr. Giles, of Virginia; the select couimiltee, according to parliamentary rule, being favourable to the object of the memorialists to the extent of the po'vers vested in congress. This committee, thus composed, clearly repudiated the power now claimed by our opponents, but brought i»; an act " to prohibit the carrying on the slave tiadi; from the United Slates to any foreiirn place or country," which act became a law on the 22d March, 1794. 2d Vol. Laws United States, 3S3. These proceedings, corroborated by Mr. Giles's statement as a member of the committee, ought to be conclusive. In the debates of the Virginia convention of 1829, 1830, page 2 IC, we find Mr. Giles using the I'ollnwing language on the lOtli Nov. 1829 : " Mr. Giles then referred to a memorial, which was presented to con- gress by the representatives of several societies of Quakers, ile imjipened to be u member of the committee to whom the subject was rel'i-rred lie had relied on the declaratory resolution, in the negotiation which ho htvl to carry on with the Quakers. j3ll i.'te committee lotre, in principle, infacuur of Che mcnsure ; but it was his duty to satisfy these persons, that congress had no right to interfere with the subject of slavery at all. He was fortunate enough to satisfy the Quakers, and they agreed, that if congress would pass a law, to prohibit the citizens of the United States from supplying I'oreign nations with slaves, they would pledge themselves, and the respective societies they represented, never again to trouble congress on the subject. The law did pass, and the Quakers adhered to their agreement. He did not know whether or not the documents, on the subject of this negotiation, were still in existence; but he believed they had been filed away with other papers. " Subsequently, an act was passed prohibiting the introduction of slaves into the United States, in which this principle was again touched in a more specific, but a different form. It was again his fortune to be on the committee to whom that subject was referred, and he drew up two ])iovisoes to a bill then pending before congress, for prohibiting the introduction of slaves into the United States after the year 1807 ; the object of which was to draw a distinct line of demarcation between the powers of congress, for prohibiting the introduction of slaves into the United States, and those of the individual stairs and territories. It was then decided, by an unanimous vote, that when slaves were brought within the limits of any state, the power of congress over them, ceased, and the power of the state began the mometit they became within those limits." Here is the clearest testimony on the subject, that as to the slaves " brought within the limits of any state," congress had no power whatever; and that such was the "unanimous" opinion of the House of llepresen- tatives in 1794 and 1807. The act of the 10th of May, 1800, 3 L. U. S. 382, prohibits citizens or residents o Ixxiv Groves et ah v, Slaughter» of the United States from owning or terving in veiiolt engaged In the fureign itlave trade, forbidden by the act of 1794. The uct of '2Hth February, lMO:t, 3 L. 11. B. 529, proliibitii llie bringing of uny negroeH, niiilattoes, ur otiier perBoiii of colour, not being nativeit, citizenii, or regintered Heiiinen of the United States, into any ulate where ttie hiwa of the atule proliibited Huch iniportntion. Thin act e.xtended to free negroBH nn well aa HliiveH, and wuh a |irncticul construction of tha iMtclnuriH of the !)th Hection of the Itit article of the connlilutiroviding money to enforce this act, have been since passed by congress down to the present period. No ledS than thirty laws have been passed by congress on the subject of the slave trade, and no less than fifty rei)oits made in tlie two houses of congress from 1791 to the present period ; yet no one act embraces the slave trade between the states, except such as acknowledge the binding force of state laws, and require conformity on the part of vessels of the United States and their owners to those laws, (as they do to the health laws of the states;) nor in anyone f)f these numerous rejiorts was it ever pretended, that congress possessed the power now claimed L our ojiponenl.s, but in all these acts or reports, it is either repudiated directly, or by implication. And if congress did not act in 1791, or 1794, or IBO.'J, on this subject, why not in 1807 — 8, or in 1818, 1819, 182((, or on the numerous occasions upon whicli they liave since legislated on this subject? Not only why did they not act by tlie pas- sage of laws regulating or prohibiting this slave trade between the states, but why no proposal by any member of congress to act, and this universal concehsion that the power was not vested in the general government ? Such has been the neeen noli lied to me. The legislature will share with me in the satisfaction which arises frnui an event interesting to the happiness of the part of the nation to which it relates, and conducive to the general order." And on the succeeding day he transmitted to the two houses of congress in a special message, " a copy of the coiis'tilulion formed for the state of Kentucky." On the 9th of November, 1792, the senate of the United States responded to the address of the President, in which they say, " The organization of the government of the state of Kentucky, being an event peculiarly interesting to a pail of our fellow citizens, and conducive to the general order, affords us j)eculiar siiisfac- tion." On the lOtli of November, 1792, the house of representatives res] mded through a committee, of which Mr. Madison was chairman, to the address of the President, in which they say, " The adoption of a constitution for the state of Kentucky, is an event on which we join in all the satisfaction you have expressed. It may be considered as particularly interesting, since, besides the immediate benefits resulting from it, it is another auspicious demonstration of the facility and ■«■ * i.M Graves et ah ». blaughter. Ixxv i a » ■ucceflR, with which an enliiifhtened people ia rapable of providing, by free and deliheratu pliiiiH otf^ovurniimnl, for their o\<. n Hut'ety uiiil niippineMS." Hucii weru th« Hulfiiin I'oriitti uiid HuriutionH under which thiH cumititiition of the state of Keulucity, the lirwt of the new wliiteit, was liien n-ceivt-d \>y tht ''resident and two hou«es of con^rruNs, and llin two members sujjsfiiuently udniill ndur it as re|)ri-MentiiliveH of the sliile. Now tlnn very conNlitiition contains pri/viHions as to siuvi'S precisely siniihir to those embodied in the constitution of Mississippi, and amonjr othtMs, after prohiliitini^ emancipation of slaves by the legisliilore, tliey suy, '• they (the leifisluture) sluiU Iiuck full jiowcr to prevent slaves from beinjj brought into this statu as merchandise." 1 liittell's Laws of Kentucky, 52. Here is thin constituti'irt, with this cliiii.se, thus solemnly sanctioned nt that early period, alnir)st cotemporatieoiis with the orj^ani/.atioii of the ifovernment, by Georffe Wiishinifton, the I'resident of tlie cunveiition wlii< h firmeii the coiistilulion of the Union, and by John l.un^rilon and Nioliolas dilman, of New Hampshire ; lliifus King and Klbridire Gerry, of Massachusetts ; Ro(^er Sherman and Oliver Ellsworth, of Con- necticut ; Jonathan Dayton, of New Jersey ; Robert Morris arul Thomas Fitzsim- mons, of Pennsylvania ; Georjrc Head, J(din Uickiiison and Uich.ird Uassett, of Delaware ; James Madison, of \ irirjnia ; lluirh Williamson, of North Carolina ; Pierce Uutler, of South (^urolina ; William Few and Abrahiir:i JJaldwin, of Georiria; all members of the conirress which received and sanctiniied this consti- tution of Kentucky, and all members of the convention which framed the consti- tution of the Union ; thus constitutiii:;, in Ikat ron^^rr^x, a repri^siMitation from tea of the tin Ire states which formeil the constitution. And yet this coustitutioii thus received and sanctioned, contiiins a clause directly riiputfiiant to the constitution of the ('lilted States, and authorizes that state to violate that instrument, by an authority, as maintained by our opponents, to exercise that commercial power as to slaves, which was vested exclusively in coni>ress, and prohibited to liio states. But no one entertained that opinicm in 179-, when ten of the twelve slates which formed the con.stitution of the Union were represented in consiress. Sup])ose, in lieu of tliis clause to proiiibit the introduction of slaves as merchandise, the consti- tution of Kentucky had contained a delectation of power to the legislature of that state, to " regulate commerce between that state and all other states," or "to coin money," or to " declare war," or to exercise any other power vested exclusively in conjrreiss ; who believes that such a constitution could ever have received the flanction of Gen, Washiui^ton, Mr. Madison, James Monroe, and all the other great men of the conjrress of 1792, or that the state could ever have been admitted, pre- pared and organized, to subvert the constitution of the Union, by that very execu- tive and congress which was solemnly sworn to preserve and maintain that instniiiient ' And yet, i)y the argument (jf our opponents, this very constitution of Kentiieky, in this clause as to slaves, contains a delegation to the state of the power vested exclusively in congress to regulate commerce among the states. To every unprejudiced mind this authority ought to be conclusive. On the Ist .March, J817, an act of congress was passed to enabb the people of the western part of the territory of ^Ussissippi " to form a constitution and state government." 6 L. U. S. 175. By which act it was reijuired, as a condition pre- cedent of admission, that this constitution should not be " rc/ji/4'«««<" to the " constitution of the, Uiiitvd Stales." On the 4th December, 1817, this constitut'on was sulimittr.d to both liou.scs of congress — Sen. J. 21; House J. 21; and on the 10th December, 1817, this constitution being declared to be in " pursuance" of the act before quoted, was admitted not to be repugnant to the constitution of the United States, and the state received as a member of the Union; yet, this very constitu- tion contained the clause, that " they (the legislature) shall have full power to prevent slaves from being brought into this state as merchandise." Here, then, the very power under which Mississippi now acts, was thus deliberately conceded by congress no» to be " repugnant to the constitution of the United States." On the 26»" lugust, 1818, the constitution of the state of Illinois was formed, and althougn slaves and slavery were by the 6th article prohibited to be " hereafter introduced into the state" — yet the slaves already there were not emancipated, although it was provided, that their " children hereailei born shall be free," and I i Ixxvi Groves et al. v. Slau/c^htcr. the inlrodiiclion of alavei from nny ntlier ilalM, evi'n " to l»« hired," wnn proliihit- (>d. liy tli« olhcini c<>iihuh of IH20, !MI7 wlnvi'ii werf eniiiiit>rntt'd and rfluined from thx ittiilt* of Illiiioi*. nnd in M 10, IM| xliivfi^ iirt< HnuiiiHriiltd ntid retiiriit'd from thi) Nanitt Htute. IlliiiniM, llifii, niid>>i' her conittitution of IHIH, wii-* to a limited cxtiuit, II Hhivo-hiildiiit; Htiitf ; Iht* MliiVfN iilrciidy there not lieiii}; t-inanci* |iati>il, but tliu future inipnrtaliini l>eiti|; |>ruhil)itfd, mid thn poHt iiuti Ix'inff liberated. Thix Hiitiject in thii!« referred to in a Hpeech delivered liy the Hon. Henry Hnhl- yviii, then 11 rejireHentrttive iii eoniriess froiii tlie I'lttslmri; iliNirict of ['eniiny Ivanin, and now one of the jiiilireN of liiiH court. In tlint Hpeech, Jiidirc lliildwin Hiiid : " When tlio coiiNlitution of liliiioiri wiiti prcHented to iin, it wiih found, not to cun- form to the ordinimce of 17H7, in the ext lusion iind nholition of idavery ; on cotn- pirinir their provisiouH, tiiey were incoiiwi^leiil : the ircntleiiiiin from New York, who moved this nmendiiient lust yeiir, olijected to the iidmiHHioii of lllinnis on this HRnoiint; there w;ih ii Nlior* liiit iiii iiiiiiiiiited disciis.iion ; it wax contended. th:it the urdiiiiitioe did not extend to .stdli.i, mid wtix not biiiiiinir on tiiein, mid no this lioime drriilvd Inj a majoritij of 117 to 11 1 (•"»4 from the non-Nliive-lioldinir Hliites). In the »»>- nite. there trn.s no ohjriiioii. Illinois w.is iiilinitted, hIic mid !iuli:ina now li ive shiveH, and. iihninjK hurr hud ihnii. Here is ii precede ill in point, and 1 hope will not be without its weiijhtin the body which iii;i(le it, iit least with those iiiciuberH whose rrimeii ure recorded in the journal." Niles' Kejj. vol. lit, pnae ;!(). In IHIH, an well ax at this moment, the prohibition of the introduction of sl.iveB for Hale, is void in that Ktiite, if it be Void in iMissis.sipjii ; for the validity ot' llie prohibition as a (|iiestion of power, Hiindv c.innot depend upon the iiiiiiilier ot' slaves in a stiili*. (Jn the 2il March, ISIO, an a<'l pissed to eimlile the |ieop|i' of the territory of Aliibaiiia to liirm a constitution and sl;ite ;.'''vernineiit, (Jth L. U. S. liiO JJy this net, one of tiie conditions precedent, on which Ihi.s couHtitiition was nuthori/ed to he formed, wa.s. that it Hhould not be " repiiiriiaiit" to the " coiiHtitution of the United ytates," On the '.ii Dec. IHi;), a copy ol' this coiistitulion was siibiiiilled to the liniise, and referred to a select committee, 11. .1. S ; and on the (ith Dec. ISl!), it was also presented to the senate of the Union, and referred to a select ciiiiimittec, S. J. 6 ; and by a joint resolution of both iiouses of conjjress, of the 1 Ith Dec. 1819, the constitution of Al.'ibama, being conceded to be " in pursuance" cd' the net before quoted, and of course "not re])ii!^naiit to the cnnstitiition of the United States," Alabama was admitted as a member of the Union. Yet t!ie constitution of that state contains the clause, that '■ they (the legislature) shall have full |)ower to prevent slaves from being broujrht into the state as merchandise." And here again the constitutionality of this provision was distinctly admitted by the con- gress of the United States. In the case of Missouri, the (piestion wns eriod of this discussion, and it was eventually abandoned, and the objection was. 1st to admit Missouri as a slave-holding stale at all, and 2d to that clause of the constitution, which prevented " free negroes, and mulattoes, from ctuning to, and settling in this state, under any pretext whatsoever." As to the first, it was con- tended that the authority to admit new states into the Union, was a discretionary power vested in congress; and that in the e.vercise of a sound discretion, conirress might make it a condition of admission, that slavery should be abf)li8hed. As to the 2d point, it was urged that the power to e.xclude free blar' s, some of whom might be citizens and voters in the several states, conflicted wit. that provision of the constitution of the Union, in the first clause of the 2d section of the -1th arti- cle, which declared, that " the citizens of each state shall have the same privi- leges and immunities as citizens in the several states." The first question was decided in favour of Missouri, by the congress of 1819, 1820, and the second ques- tion was not then decided. By the act of congress of the 6th March, 1820, the people of the Missouri terri- 4 ■ ^ Grorea et al. v. Slaughter. Ixxvii lliit- |llM(l a llMlf tory #eri) luthorixeil to"rorm a nonilitiitioti und «Ute gorttrnmtnt," 6th vol. L \i. 8.. iDS, liy this ant Nluvery waa to !>« |>ri)hibit««l in ttie territory ridded by FruM.e, ufid«r tli« iiitiiio ol° LoiiiMiiina, imrtlt of lat. HH'^ 31)', not included in tlin atato ol' I'l. loit." Hy lliiN act liw |)«o|)Im of tlitt MiMNouri turritory were authorized to fort" " a oonatilution and itule ){overntneiit. l'roridiil,l\\al tli« nunie when formed •hall be repuhlirttu, und not n/iuirnimt to the ronntitiition of titr I nitnl Siiittn," und tJiH 7tli N<'i>iii>,i of tliiH uct wiiH UN I'lillowH : " 'I'liut III cuMH a coimlitiition and Htate governniri,) Hhull lie formed for the |ieo|)ie of the Haid territory of MiHMourt, the NUid conventiofi or re|ireMi'iitutiveH, an noon thcreiifter an may he, hIiuI' caiiiie a true and att«Hled copy of Huch conNlittilion, or frumc of Mtute );ove' ii>iieiu, aM Mhiill he adopted ur provided, to he trunMniilted to coii|{ieHM." 'I'hiH conntiiiition, '* in piirHUunce uf tliiM uct," wuM formed on the DHh of July , 1820, and contuiiied the folluwiii|j, umung other itroviHioiiH ; — 20. The ^reneral u.'tHemhIy HJiali not have power to pniiM lawn . — l8t. For the emaiu:i|ialioii of NJaveM, wiliioul the contienl of their owner*: — They nIiuII have power to puHn Iuwh ; — " 'I'll prohibit the inlroiluclioii of any itlave fur the purpuae ofapeculation, or ■■ an article of trade or iiierchiuidiNe." it hIiuII be their duty, aa auun an may be, to paaa Hiich lawa aa may be necea- aary. 1. To prevent free neitrroea and mulattoeH from coming to, and aettling in thia Btate, under any pretext whiitever: and The couMiitiitioii thuH formed, wun riiiiimittpd to both houaea of nongreaa, and referred, in Nov, 1M2(), to Niteciul comiiiilli'fH, wild reported in its favour, and that it was not rciiuiinuiU to tlic ion.stUiUion of the I nitnl Slutiti. Ami now, then, it ia believed not a Hin^'le memlier ujion the diNcuHHion which hud taken place, did aiip- ))08e tiiat Ihia ciiiuse prohiiiitiii)r the introduction of HluveH as merchuiuli^e, waa uncoiiHtitutioiial, but it wuh conli'iidi'd liy iiiuiiy, that the Ith (tluuNu of the 2(ith section of the ;>d article, prevcnliiiif "free nejrroes" coining into the Hiale, wus repugniint to the lat clause of the 2il Hectioii of the Ith article of the coii8titutiuti of tile Union before (|U(ited, ua to the reciprocal righta of citizeiia in all the statea, it bein!^ contended that free neirroeH were citizens in some of the Htates. The great dilliculty then arisiiijj out ?lian(iise." On the 10th March, 1836, this constitution was " submitted to the considt'ration of congress," in a special message by the President. Senate Journal, 210. On motion of Mr. Buchanan, of Pennsylvania, in the senate, on the same day, it w:is referred to a select committee. On the 22(1 March, 1836, Mr, ]{uchanan, as chairman from the select committee, reported a bill fr)r the admission of Arkansas as a slate, under the constitution submitted by the President, and after considerable debate, the bill passed the senate by a vote of 31 to (i, fifteen of the ayes being from non-slave- iiolding states and from both political p.irti^'s. and four of the noes being from non- slave-holding states; namely, Messrs. Knight, Prentiss, Robbius, Swift, and two from slave-holding states, namely, Messrs. Clay and Porter, both of whom placed •iue'iT negai've on this ground alone, that Arkansas had formed her constitution without asking, as was usual, the previous assent of congress. Having participated in that debate, and taken a deep interest as a senator from Mississippi, in the .id- mission of Arkansas, and successfully opposed an adjournment till the bill was en- grossed, I recollect well all the proceedings, and that but a single senator based his objection on the ground of the particular clause in qcfstion, as to slaves. Sucti, R,J Graves et al. v. Slavghter. Lxxix the ited 1868 till ion in tea, d it mly :ard the lea- in of lion nsi- es8. then, was the view of the senate as to the constitution of Arkansas; and that ihey felt constrained to oppose any clause in llio constitution of a state, which they deemed repugnant to the constitution of the Union, is cltiirly proved by a reference to the proceedings and debates on the confirmation by the senate, at the same time) of the constitution of Michigan. On the Iwt April, IS'.id, when tiie adoption of the constitution of Michigan, and the bill for the admission of that state (as well as of Arkansas,) was pending before the senate, the following proceedings will be found at page 259. " The motion by Mr. Clay, to amend the bill, by inserting 2 line 4 after "confirmed," e.\cept that provision of the said constitution, by which aliens are admitted to the right of sullVage," yeas 14, nnys 22; a reference to these pro- ceedings and debates will show tliat the senate considered it its duty not to con- firm any clause of the constitution of a state, repugnant to the constitution of the United States, but to strike out such clause before the admission of the state ; and the clause in question as I well recollect, and as the printed debates will show, was not stricken out, because, after a very prolonged argument, it was not consi- dered repugnant to the constitution of the United States, the question as to the qualification of voters in a state being decided to be a matter exclusively belonging to the slates. Arkansas was admitted at the same time witli Michigan, and under this view of the subject, why was not the clause in question as to slaves stricken out? For the most obvious of all reasons, because but a single senator considered it repu'jnant to the constitution of the United Stales. Such were the proceedings in the senate ; and in the iiouse, the constitution of Arkansas was submitted, and she was admitted as a state, on the 13lh June, 18;{l), by a vote of 143 to 50, (House Journal, 10().'5,) several of the members from the slave-holding stales voting in the negative, on the same ground as tliat assumed in the senate. Nor was the matter pissed by in silence, for whilst this bill was pending, Mr. Adams moved to strike out from the bill, that portion of it in regard to slaves and slavery, (page 997.) but it was not seconded ; and the constitution of Arkansas was confirmed and accepted with this chiuse included. Here, then, in 1792, 1817, 1S18, 1819, 1821, and 1836, are si.t states whoso con- stitutions were expressly regarded by ccjngress, to be conformable to the constitu- tion of the United Slates, admitted at all tliese |)erinds with clauses in all of them, as to the e.vclusion of slaves as mercluindise, precisely similar to that now under consideration. One of these was the stale of Mississippi, whose right thus to pro- hibit the introduction of slaves as merchandise, was in the act of admission and confirmatiim of her constitution, expressly conceded by congress. Such lias been the uninlerrupled, iiositive, as well as negative action of con- gress on this subject for half a century, fiom the organization of the government to llio present period, repudiating their own power, and admitting again and again the ])nssession of this power by the states, and by the slave-holding states projier, as well as in the case oflllinois, where slavery exsted when il became a state, and still exists, but is disajjpearing on the death of the slaves now living. Now, let it never lie forgotten, that the case upon which our opponents rely, establishes the doctrine, that this power to regulate comiiierce, is not a concurrent jiower, but one vested exclusively in congress; and therefore, to show that the clause in question embraces an authority that can constitutionally be exercised by a state, demon- Btrates that congress has no power over the subject. Having examined the action of congress on this ([uestion, let us now investigate that of the states. We have before referred to the clause in the original constitu- tion of the state of Kentucky, authorizing the legislature to prohibit the introduc- tion of slaves as niercliandise. \l the November sessiim, 1791, the legislature of Kentucky jiassed a law, declaring, " That no slave or slaves shall be imported into this slate as merchandise." 'J'liis act intlicled a penally of $(300 for each slave so illegally imported, but did not niiiincipntc tlic .ilnvr ; and it permitted emigrants and citizens to bring in slaves for their own use. The act then was almost precisely eimilar to the provisions in Misjiijsippi. 1 Lit. Laws Kentucky, 246. Uy the amended constitution of the slate of Kentucky, adopted August 17th. 1799, the clause uulliorizing the legislature to prohibit the introduction of slaves a:; mer- chandise, is retained and adopted. Con. 237 By the act of Feb. 8th, 1815, 5 Lit. Ixxx Groves et al. v. Slaughter. \m' Laws Ky. 293, a penalty is inflicted on the importation of slaves as merchandise, but the slave is not emancipated. The act of 12th Feb. 1833, 2d vol. Stat, of Ky. 1482, continues the restriction as to importation for sale, and introduces further restrictions with special exceptions as to emigrants, but the slave is not eman- cipated. During this very session of ^he legislature of Kentucky, in 1840 and 1841, an attempt was made to repeal this act and failed. These laws have been invariably enforced by all tht^ judicial tribunals in Kentucky. I will refer only to a few decisions. Commonwealth v. Griffin, Oct. 7, 1832, 7 J. J. Marshall's Rep. 588 ; Lane v. Greathouse, lb. 590. It was decided in these cases that either the importation or sale of slaves introduced for sale, was an indictable offence. See further, 5 Marsh. 481; 1 Bibb, «15; Barrington v. Logan, Fall Term, 1834; 2 Dana, 432. Li Virginia there are numerous laws before and since the adoption of the con- stitution, prohibiting the introduction of slaves from other states, except under special exception, one of which was an oath that the owner did not introduce them for sale. Act of 1778, preventing further importation of slaves, chap. 1, Cha. Rev. p. 80; act of 1785, chap. 77, p. 60; act of 1788, chap. 53, p. 24 ; act of 1789, chap. 45, p. 26 ; act of 1790, p. 7, chap. 11 ; act 17th Dec. 1792 ; Pleas. & Pace, 1 Rev. Code, 186, sec. 13, 1794, 1800, 1803, 1814, 1805, 1810, 1812, 1816, 1819 ; see 1 vol. Rev. Code Va. 421, and notes. Generally, by these laws, the slaves introduced against their provisions were declared free, and these laws have been uniformly enforced by all the courts of Virj^inia, by the highly respect- able court for the District of Columbia, and by the Supreme Court of the United States. 1 Leigh. 172 ; Gil. 143 ; 2 Munf 393 ; 2 Marsh. 467 ; Law of Slavery, 329 ; 5 Call, 425 ; 6 Randolph, 612 ; 3 Crunch, 324, and note, 326 ; 8 Peters, 44. The acts of Virginia of 1788, 1789, 1790, and 1792, cotemporaneous with and shortly aller the adoption of the constitution, and passed by some of the very men who had either boen in the convention which formed the constitution of the United States, or in that of Virginia, which ratified it, are entitled to high respect. Tennessee, it is understood, took with her, on the separation from North Caro- lina, laws of thiit state, restrictin^r the introduction of slaves for sale, and on the 21st October, 1812, that state passed a law prohibiting the introduction of slaves as merchi>ndise ; but permitting emigrants or citizens to bring in their own slaves for their own use. The penalty for the violation of the law was the seizure for the state of the slaves illegally introduced, and sale to the highest bidder. 2 Scott's Laws of Tennessee, 101. In 1798, the legislature of Georgia passed a law, forbidding the importation of slaves from any other state into Georgia, except by persons removing into the state, or citizens who became owners of slaves in other states by last will or other- wise. Marbury & Crawford's Digest of Laws of Georgia, page 440 ; and see also, act to same eff'ect, Dec. 1793, cited Prince's Digest Laws of Georgia, page 455. By act of 1817. Prince's Digest, 373, the importation of slaves from any state for sale in Georgia was made a high misdemeanor, and punished with im- prisonment for tliree years in the penitentiary. By act 3d February, 1789, S. &. J. Adams' Laws of Del. p. 942, not only the importation of slaves into that state, but their exportation from Delaware to other BtateB without license from live justices, was ])rohibited under a severe penalty. This act is referred to and confirmed by act June 24tli, 1793, c. 22, p. 10, 94 ; June 14th, 1793, c. 20, and by act January ISth, 1797, L. Del. 13, 21. To forbid by a state law the exportation of slaves, if they be articles of uitMciiandise under the commercial power, is still more clearly to violate the constitution, than to ])ro- hibit their importation ; yet such laws have been passed and enfoiced by Delaware nnd many other states. By the act of Pennsylvania, of the 29th March, 1788, and t'lo act of 1st March, 1780, explained and amen, 396 ; 6 Bin. 213, 204, '>97 ; 1 Wash. C. C. R. 499 ; 1 Bro. 113 ; 5 S. & R. ()2, 333 , 2 S. & 11. 305 ; 1 Yate3, 3i)5, 3i)8, 233, 220, 480 ; 4 Bin. 186 ; 1 S. & R. 23 ; 3 Bin. 30i , 2 Dal. 224, 227 ; 4 Dal. 258, 260 ; 4 Wash. 'J. C. R. 396 ; 1 Watts, 155. I will cull attention but to one o( these cases decided in 1806, by the circuit court of the United States for the Pennsylvania district, by .Judge Peters, of the district court, and Jadge Washington, one of the .Judges of the supreme court of the United States, botli experienced and eminent jurists, and both familiar with the proceedings of the convention which formed tlie constitution of the United States, and both distinguished cotemporaries with, and associates of its framers. This was the case of a suit for fretdom by a slave imported from South Carolina into Pennsylvania in 1794, contrary to the prohibitory act of that state, The Ixxxii Groves et al. v. Slaughter. facts were embraced in a sp^icial verdict, and time taken for the court to deliberate, when the decision was pronounced by Judge Washington, as follows : " To dispose at once of an objection to the validity of this laW; which was slightly glanced at, I observe, that the 9th section of the 1st article of the constitution of the United States, which restrains congress from prohibiting the importation of slaves prior to the year 1808, does not, in its words or meaning, apply to the state governments. Neither does the 2d section of the 4th article ; which declares, that ' no person, held to labour or service in one state under the laws thereof, escaping into another, shall, in consequence of any law therein, be dischartred from such service ;' extend to the case af a slave voluntariltj curried by his master into another state, and there leaving him under the protection of some law declaring him free. The exercise of this riglit, ni restraining tlie imporlat>"n of slaves from the other states, under differ- ent limitations, is not peculiar to Pennsylvania. Laws of thio nature, but less rigid, exist in most of the states where slavery is tolerated." 1 Wash. C. C. R. 560, 501. Althougii the coistitutional objection to the prohibitory law of Penn- sylvania was but slightly glanced at in the argument, it seems to have been maturely considered by the court and the very question decided, that the law was constitutional, and tliat the clai;,-k> ip tlie constitution of the United States, restrain- ing congress until 180S from prohibiting the introduction of slaves, " does not in its words or meaning o/i/>lij to t'c 'ate goccrnmcnts ;" when we recollect that this was the case of a slave imported fr'im (iie state into another, the importance of the above decision becomes ohvious. and especially as the court recognises in the same decision the constitutionality fil' 'he laws of other stales, and of the states where, slavcnj is tolerated, restraining llie impoitation of slaves t'rom other slates; and this very cii.se. and tlie doctrine contained in it, were solemnly reaffirmed by the same court, in the case ex |)arte Simmons, 4 Wash. C. C. 11. 39(), and applied to the case of a slave introduced from South Carolina into Pennsylvania in the year 1822, In Maryland, by acts of 1796, variously modified in 1797, 1798, 1802, 1804. 180.), 1806, 1807, 1809, 1812, 1819, 1S20, 1821, 1822, 1823, 1824, 1828, 183l', 1832, !8o3, 1834, 1836, 1837, (see 1 Dorsey's Laws of Maryland, page 334, «fcc.) the importation of slaves for sale into Maryland was prohibited; and in most of the laws, the slaves so imported weio declared free, and importation, except by emigrants, though not for sale, was generally prohibited. These laws have been invariably enl'orced by repeated decisions of the judicial tribunals of that stale, as well as of the adjacent states, and by the Supreme Court of the United States. 5 Har. & John. 86, 99, 107, and note; Law of Slavery, 381, 382, 388, 389; 5 Rand. 126 ; 4 Har. & M'Hen. 418 ; 4 Har. & John. 282; 3 Har. & John. 564; 6 Cranch, 1 ; 1 Wheaton, 1 ; 8 Peters, 44. In New York, slavery existed to the same extent, as regards the rights of the master, as in most of the slave-holding stales proper, until very recently. By the colony laws of New York, prior to the revolution, slavery was as firmly established ill that state as in any of the Southern states, and the importaticn of slaves into New York encouraged hij luic. See acts of 1730 and 1740, et al.; 1 Colony Laws, 72, 193, 199, 283, 284. The act of ?' th March, 1781, c. 32, 56, recognised slavery as in full force in New York, as ■■ w did the act of 1st May, 1786, c. 58, sec. 29, 30. The act of the 22d of Fi ary, 1788, c. 40, enacted cotemporaneously with the adoption of the constitu' of the United States, recognised and continued the existence of slavery in New York, but prohibited the importation of slaves/or sale, and the act was continued by subsequent laws. 1 Revised Slats. 656 ; K. & R. 1 ; R. L. 614, cited 14 John. 269. By the act of 4th July, 1799, c. 62, slaves born in the state after that date were declared free at 28 years of age, but all others were continued as slaves. By act 30th March, J 810, the importation of slaves, except by the owner for nine months, residence, was prohibited ; and most of the former laws were incorporated into the act of 9th April, 1813 ; and finally, on the 4th of July, 1827, slavery was in fact abolished ; except, perhaps, as to the very fev slaves born before 4th July, 1799, and subsequently lawfully introduced as slaves. Groves et al. v. Slaughter. Ixxxiii te, use I ted to ts. on, By the official by the United States, of the jlation of New York, the census following slaves were returned from that state. In 1790, 21,324 slaves ; in 1800, 20,613 slaves ; in 1810, 15,017 slaves ; in 1820, 10,088 slaves; in 1830, 76 slaves; in 1840, 3 slaves. Let it be remembered also, that, by the constitution of New York, tile statutes of that state, enacted by the legislature, received tlie sanction of a council of revision before they became laws, which council consisted of the governor, the chancellor, and JihIji.'h of the supreme court. Con. 181. These laws, forbidding the importation of slaves for sale, received a judicial sanction be- fore their enactment ; and let it be remembered, that many of them passed with the sanction of many of the dlstinjrnished statesmen of New York, who had par- ticipated either in the convention wiiicii formed, or wliich ratified the coti.stitution of the United States. Wlii'st, by tlie act of 1788, and other laws of a subsequent date, slaves subsequently imported into the state could not be sold by tlie master or owner ; yet, even these slaves were property in all other respects; tliey were assets for the payment of debts ; they could be sold by a trustee or assignee of an insolvent ; by an administrator or executor, or by a slieriff under an execution ; and all other slaves were subject tosale by their owners as all other property. 2 John. Cases, 79, 488, 8!) ; 11 John. 68, 415; 17 John. 296; 3 Caines, 325; 8 John. 41; 14 John. 263,324; 9 John. 67; 15 John. 283; 19 John. 53. The first case, in which the law was settled under these statutes in New York, was decided in 1800, and will be found reported in 2 John. Cases, 79, 488. In 1794, A. the owner of a slave in New Jersey, removed to New York with the slave, and put the slave to service witli B. until they or their executors siiould annul their agreement. Held, liir.t a sale of the slave was prohibited by act of February, 1788 ; but that a sale of the slave by executors, trustees, assignees, &c. would be valid. Chancellor Kent declared, " The act (of 1788) was iiostile to the inqiortation and to the exportation of slaves, as an article of trade, not to the exist- ence of slavery itself; for it takes care to re-enact and establish the maxim of the civil law, that the children of every female slave sliall follow the state and condi- tion of their mother." And he adds, tliat "sales made in the ordinary course of the law, and wiiich are free from any kind of collusion, are not within the provi- sions of the act." " By considering the sale mentioned in the act, as confined to a voluntary disposition of the slave for a valuable consideration, by the owner him- self, we are enabled effectually to reach the mischief in view, the importation of slaves for gain, and we take away every such motive to import them." In tlie same case, Beeson, Justice, says: "By the law of tliis state slavery may exist within it. One person can hare propertij in another, and the slave is part of the iroods of the master, and may be sold, or otherwise aliened by him ; or remain- ing unaliened, is on his death transmissuhle to his executors ; but, by tlie act under consideration, a slave imported, or brought in, is not to be sold," &c. — as to all other slaves in New York, the court decide : 1st. That they may be sold by the owner as other property, but as to imported slaves, that they cannot be sold hy tiie owner ; but 1st, that he may give them away, and the title of the donor be valid. 2d. That their issue may be sold even by the owner who imported their mother. 3d. That the imported slaves are liable to sale by sheriffs, assignees, trustees, executors or administrators, as all other property. In these opinions the court was unanimous, and the case is in point in every particular, and was subsequently recop"iised in all succeeding cases. The same court, in 2 John. Cases, 89, held, tliat as to a slave imported in 1795, from New Jersey to New York, the sale was void, under the act of 1788; and this case also was affirmed in 1802, and the principle of the two cases, and especially of the former, was expressly recognised by the supreme court of New York in 1S20 ; and that a note given for the purchase of a slave so imported and sold, was void 17 John. 295. In 1803 the supreme court of New York enforced the act of 1788 as well as of 1801, rendering void the sale of imported slaves. 8 Caine's Rep. 325. Now, slaves already in the state of New York, stood on the same footing as slaves in Ixxxiv Groves ct al. v. Slaughter, Mississippi, and it was only as to slaves imported into either state, after a certain dute,tliat tlie sale is sought to i)e invalidated ; and if the law is void in Mississippi, under the argument of our ()pi)nnent3, it must have been equally void in New York, during all this ])eriod, notwilhstandiiig these re|)eatfd decisions to the contriiry of the courts of that state, upholding the rights of property and of sale of all the slaves in New York, npholdinir xlw right ol' property and the sale for (lei)ts, or in course of distribution even of these imported slaves, but rendering void the mile hij the im/iortcr. Uy iho law of North Carolina, of 1794, Haywood's Man. 533, 4, c. 2, the in- troduction of slaves after the \st tif .Maij next, for sale or hire, was prohibited, and an oatli was retpiired that the slaves were not introduced for trallic, with an ex- ception in faviiur of emigrants bringing in their own slaves for their own use, and an exception in favour of travellers. The penalty was one hundred pounds for each slave so illegally introduced. Upon the general revisal of the laws of this state, at the September session, 1836-7, the im()ortation of slaves from certain states was altogether interdicted. 1 Turner iSc Hughes' Dig. 571 to 574. The acts of South Carolina, of 1800 and of 1801, prohibited the importation into that state of slaves from any jdac-' " witiiout the limits of this stale," under penal- ty of !^100 for each slave so il' •: .My imported, and forfeiture of the negro to be sold by the slate. The act of 1802, e.xcepls from former act, persons bringing into or through the stale any slav.:.-;, on taking oath that they were not intended for sale; and if imported cortrarv to tlie law, tliey were declared free. By the act of Missouri, of latli ^larch, 18:55, digesting former laws, various re- strictions were imposed i: . iiiiroduction of .'slaves, and nearly similar provisions were adopted by Arkan; a the 24th of February, 1838. llev. Stat. Missouri, 581, lb. Arkansas, 730, tti Missouri, the validity of laws re.-iUicling or totally prohibiting the importation of flai ■ has been repeatedly allirmed by the supreme court of that state, 1 Missouri nep. -l72, 2 lb 214, 3 lb. 270; and several of tliese decisions recognise and enibrce tiie provision, before quoted, of the constitution of Illinois, prohibiting the introduction of slave.-i into that state. By territorial laws, before referred to, adoj)ted iv. 1808, restrictions were im- posed in the territory embracing the present states of Mississipji and Alabama, on the introduction of slaves as merchandise. Uy the constitutions of each of these states, adopted in 1817 and 1811), full jjower is given to the legislatures to pruhibit this traffic. By the amended constitution of Missisi-ippi of 1832, this traffic was entirely prohibited, and by the act of 13th of May, 1837, such importation for sale into that state, is declared a high misdemeanor, punishable wilii imprisonment, with a fine of .^500 for each slave so introduced, and the nullity of the contract of sale, and forfeiture of tiio purchase money. In Louisiana, by the acts of 1826; of the 19lli of November, 1831 ; 2d of April, 1832; before referred to, the introduction of slaves into that slate for sale, was pro- hibited under severe penalties, and the slaves so illegally introduced declared free. By the act of Rhode Island, of 17t)4, subsequently continued and still in iurce, 80 I'ar as shown by their most recent digests, the importation ot' slaves into the state was forbidden, w'ith the excepti(ni of d<)m('slic 'slaves of "citizens of other states travellins through the stale or coming to reside therein," and the slaves il- legailv inpoiled declared free. The slaves then in the state, or im])orted under the above exceptions, were cimlinucd as slui-fs, but their children born after the date of the law became free. Laws of Rhode Island, page 4il. By the laws of Connecticut, of 1774 and of 1784, since three times re-enacted, and revised and continued in 17!>7 and 1821, slavery was continued as to the slaves already in the state, but all born after the Ist of March, 1784, we'-p declared free. See Stat. 428, 440 ; 1 Swif. Sys. 220 ; 12 Con. Reps. 45, 59, 60, 64. Tliese laws declared "that no Indian, negro, or mulatto slave shall at any time hereafter be brought or imported into this state, by sea or land, irom any place or places whatsoever, to be disposed of, left or sold within the state." In the case of a slave brought from Georgia to Connecticut, in 1835, and left there for temporary purposes, as was contended, such slave was declared free, one judge only dissenting, and he upon the sole ground that the slave was not left Grovea et al. v. Slaughter. Ixxxv lin [of kie Jin ll»J 111- fid Ind Ibr ■lis lin within the meaning of the act of 1784. In this case, reported in 12 Conn. 38 to 67, and decided in 1837, it was held, first, that slavery did exist in Connecticut as to the slaves introduced prior to u. certain date; lli.it these slaves "still continued to be held as /irn/icitij, subject to the control ot'tlicir niustfrs ; and that numbers of them still continue so to be held, ns proved by the lust census of the state." 2d. The doctrine of 8 Conn. 393, was uthriiied, in which it was declared that a certain negro in Connecticut " was the .ilacf and /irrsoiial propcrtij" of his master in Con- necticut. 3d. That "there is nothing in the constitution of the United States" forbidding any state from pieventing slaves being roluidaiUij brought within their limits. 4tli. That slavery is local, and must, be gurcnud enlirilij by the luvvs of the state in which it is attempted to be enforced. 5th. That the law of Connecticut, and of any other state preventing the importation of slaves from any other state for sale, are valid. 6th. That a state, retaining in servitude the slaves within its limits, may legislate " to prevent the increase of slavery by importation." This case was very elaborately argued, and the opinion prejiiired with great care and ability; and upon these points, evolved by me from the decision, the court was unanimous. The case is precisely in point on the principles deciiied; and if slaves can be imported, for sale, into Mississippi, they can be imported, for sale, into Con- necticut; for the slaves already in the hitter are just as much "the property of their masters" as in the former. See also siinihir decisions in Connecticut on most of these points. 2 Root. 333, 517 ; 2 Conn. 355 ; 3 Conn. 4«7 ; 8 Conn. 393. By the act of New Jersey of 14th March, 1798, Elmer's Digest, 520, slaves al- ready within the state, it is expressly enacted, shall remain slaves for life ; and their sale by their owners is permitted, except collusive sales of decrepit slaves. The importation of slaves, for sale, is prohibited under a pecuniary penalty, but certain persons are permitted to bring in certain slave:? for their own use. By the act of 27th of February, 1820, Elmer, 525, slaves born after 4th of July, 1804, are declared free; the males at 25, and the females at 21 years of age. The importa- tion of slaves into the state for sale, or exportation for sale, is forbidden, and also generally, with some exceptions; and the slave unlawfully imported or exported is declared free. The law of New Jersey, of 1798, differs in no respect from the present provision in Mississippi, and these laws have been universally recognised in New Jersey. See 2 Halsted, 253; 3 Hal. 219, 275; 1 Penning. 10; 4 Hal. 167; 1 Hal. 374. In Indiana, no /lave can be imported under their laws. 1 Blackford's Indiana Reports, 60; 3 American Jurist, 404. Nor in Ohio, Maine, Massachusetts, New Hampshire, or Vermont, under their constitutions. See Book of Cons, pages 273, 19, 38, 62, 81. See Com. v. Aves, 19 Pick.; 4 Mass. 123, 128, 129; 2 Tyler, 192. When the constitution of the Union was formed, all the states were slave-holding states, except Massachusetts; and by the doctrine of our opponents, none of them but that state could have prohibited the introduction of slaves, for sale, and yet they all exercised the power. That there may be no mistake on the subject, I refer the court to Senate Document, 505, containing the census of each state, com- piled by the department of state, under the resolution of congress of February 26th, 1833 (and the supplement returned this year), showing the number of slaves in those states generally denominated free states. 1790. 1800. 1810. 1820. 1830 1840. New Hampshire, 158 8 Rhode Island, 952 381 108 48 17 5 Connecticut, 2,759 951 310 97 26 54 Vermont, 17 New York, 21,324 20,343 15,017 10,088 75 3 New Jersey, 11,423 12,422 10,851 7,557 2,254 658 Pennsylvania, 3,737 1.706 796 211 403 31 Delaware, 8,887 6,153 4,177 4,509 3,292 2,613 Illinois, H 168 917 747 184 ((■ Ixxxvi Groves et al. v. Slaughter. I > 111 And yet all tlicse nine Ntatcs, now denoniinated free states, did, so far as they existed in 1790, liold slaves, and acknowledge property in slaves, and the sale of slaves within their limits was valid; and according to the argument of our oppo< nents, all their laws, piohibiting the importation of slaves for sale, then were, and still are, unconstitutional; and slaves always could, and now can be, lawfully im- ported and sold, and held as slaves there : for the doctrine is, that so long as a sin* gle slave is held as such in any state, any number of slaves may be imported into and sold and held as slaves within its limits, the alternative being between total, immediate, and absolute emancipation of all slaves on the one hand, and the per- petuity of the slave trade on the other. But the acts of 1792, of Virginia, and of 1796, as well as previous laws of Mary- land, prohibiting in eti'ect the introduction of slaves from other states for sale, have been repeatedly and unanimously recognised as valid, and enforced by the supreme court of the United States, and also by the highly respectable court for the District of Columbia. By act of congress, the laws in force in Virginia and Maryland, at the date of the cession by those states of their respective portions of the District of Columbia, were continued in force after the cession, meaning thereby of course, only such laws of those states as were not repugnant to the constitution of the United States, for such laws only could have been previously in force in those states, and such laws only could have been continued in force in the District. These laws then under the declaratory act of congress, as has been universally conceded, continued in force by virtue of their previous operations over those jjarts of the District for- merly included in the ceding states, and not by virtue of any act of congress re- enacting iheir provisions; and here let it be remarke'', that even as to those laws of any state adopted prior to the constitution of the United States, but which were repugnant to powers granted exclusively to congress by that instrument, it is an admitted principle, that all such laws became null and void, ufler the adoption of the constitution, and all subsequent decisions enforcing any laws of a state even prior to 1788, forbidding the introduction of slaves for sale, proclaim the con- sistency of those laws with the constitution of the United States, as fully as though they had been subsequently enacted. In 1802, a claimant of a slave, without the consent of the true owner, brought him from Maryland into Alexandria, in the District of Columbia, (formerly Vir- ginia,) where he remained more than a year, and the circuit court for the District of Columbia decided, that being a slave imported contrary to the law of Virginia, of 1792, manumitting slaves imported from any other state, and held twelve months in that stale, unless upon oath made within a certain time that the importer did not bring them in " with an intention of selling them" — and this oath not having been taken by the claimant who introduced the slave, he was free. Scott V. Negro London, 3 Cranch, 326. The decision was reversed by this court, upon the ground, that although the prescribed oath was not made in due time by the claimant, who introduced the slave as his, yet such oath having been made within the proper time by the otvner, that on that ground the slave was not free ; but the validit}' of the Virginia law was fully recognised. 3 Cranch, 324. In 6 Cranch, 1, this court also admitted the validity of the law of Maryland, of 1783, prohibiting the introduction of slaves into that state. In 1 Wheaton, 1, this court again unanimously admitted the validity of the Maryland act of 1796, before quoted, prohibiting the importation of slaves for sale, or also to reside, except as to emigrants. The court expressly declare that, that " act of the state of Marylond," " is in force in the county of Washington (Dis- trict of Columbia)." In 8 Peters, 44, Lee v. Lee, the case is thus stated by the reporter, and the unanimous decision of this court, as pronounced by Justice Thompson, is also given. " The plaintiffs in error filed a petition for freedom in the circuit court of the United States for the county of Washington, and they proved that they were born in the state of Virginia, as slaves of Richard B. Lee, now deceased, who moved with his family into the county of Washington, in the District of Columbia, about the year 1816, leaving the petitioners residing in Virginia as his slaves. lU » Groves et al. v. Slaughter. Ixxxvii »o« nd ra- in- Uo of lia, uch until the year 1820, when the petitioner Barbara, was removed to the county of Alexandria, in the District of Columbia, where she was hired to Mrs. Muir, and continued with her thus hired for the period of one year. That the petitioner Sam, was in lilie miinner removed to liie county of Alexandria, und was hired to General Waiter JoneH, for a period of about five or Bix months. That after the expiration oi' the said periods of hiring, the petitioners wtTo removed to the said county of Wasliington, wliere they continued lo rewide as liie sluves of the said Richard B. Lee, until his deatli, and since as the slaves of his widow, the defend- ont." The court said : " By the Maryland law of 1796, it is declared, tliat it shall not be lawful to im- port or brinjf into this stale by land or water, any negro, mulatto, or other slave for sale, or to reside within tliis state. And any person brought into this state as a slave, contrary to this act, if a slave before, shiili thereupon cen.se to be the pro- perty of the person so importing, and shall be free." " And by the act of congresH of the 27th of February, 1801, it is provided, that the laws of the state of Maryland, as they then existed, should be, and continue in force in that part of the district,. which was ceded by that state to the United States." " The Maryland law of 1796, is, therefore, in force in the county of Washington, and the petitioners, if brought directly from the state of Virginia into the county of Washington, would, under the provisions of that law, be entitled to their freedom." Here, the law of Maryland, of 1796, prohibiting the introduction of slaves from other states into that state, was enforced by the unanimous opinion of the Supreme Court of the United States. This is not an extra-judicial opinion, but a decision directly in point, enforcing a law of Maryland, which involved this very question now to be decided by this court. And, here let me observe, that if it is lawful and must be permitted under the commercial power to introduce slaves from one slate into another for sale, it cannot be lawful in any state to emancipate them as a con- sequence of such introduction, any more than to forbid the sale. And here let it be remarked, that, our opponents concede that each state may emancipate all the slaves within their limits by a state law, where there is no opposing provision of the state constitution, and where there is, then by an amendment of her state con- stitution, to be adopted by the state. Each state may dissolve at pleasure, or esta- blish the relation of master and slave within her limits, and that congress can neither dissolve nor establish that relation in a state. But to add to the number of slaves in a state against her will by the authority of congress, is so far to establish and extend the relation of master and slave within her limits by the authority of con- gress. But, by the concession of our opponents, a state may emancipate all the slaves within her limits, by declaring them not to be property within her limits, and then this commercial power they say will not extend to that state. As, however, a state cannot do this as to goods and merchandise, by declaring them not to be property within her limits, so as to exempt them when imported from the operation of the commercial power, this very distinction shows, that goods and merchandise are, and slaves are not within the operation of the commercial power. But this ad.Tiis- sion of our opponents, that a state may emancipate all or any portion of the slaves within her limits, concedes, as it seems to me, the whole case, for if the state may emancipate, must she not have the power, the moment the slaves are brought itiithiTi her limits ; for they are then within her territory and jurisdiction, and subject to her exclusive power ; and if a state may not thus emancipate as soon as the slaves are landed, must she wait for days or years, or who is to prescribe the time when the state laws shall begin to operate, or the number of slaves that shall be embraced within the provision, whether it shall include the anti nati or post nati, or extend only to those that may be hereafter introduced, or include also all those already in a state; and no one will deny, that if to emancipate slaves introduced for sale be not forbidden by the commercial power, it cannot be forbidden by that power to declare the sale unlawful. We have seen in the conrse of this argument, that ten of the twelve states which framed the constitution, have passed laws, many of them cotemporaneous with the Ixxxviii Oroves et ah v. SlaugJUer* IV'-' I'l 1- formation of the conititution or almost immediately after, prohibiting the intro TtQ' tion from other states, of slavei for »ii\>', and liave enforced these Iiiwi. That ■-. a- lar proviiinna )> ve been made in eff\i t by all the itatei in their laws or unstitu- tions, and thai -so pruviitions hiive all been enforrnd, that the iiu|ireui< judinini li'ibunc.1 uf evi'iv rotate (wheru tliu ({Uestion haH been mai.' ) \m\ e again and again, during a period uf inore tlian fifty yeurH, declared the^' <.« < 'lo be valid; and tliat Jhe supreme court uf llie United Suites have, a^.tiii an>< ..^.ua, unanimously recog- nised their constitutionuliiy, iind carried them into execution; that at least six of the new states have athrnied in their miititiiiitidiiM the power to puns those laws, and that congress (sometiincH by an iinunimouM vote) liiive oij all these ocuucnans, com> mencing in 1792, and teiininaling in 183<), conceded lliiii these constitutions affirm- ing this power, were " not repugnant to the constitution of the United Slates." Does not all this settled action of all the departments of the governments of the states, and of the United States fix tiie construction of the constitution in this respect, and leave it no longer ■<\ i open question for the investigation of this court. This court have declared that " a cotemporary exposition of the constitution prac- tised and acquiesced under for a period of years, tixes the construction, and the eowtg will not shake or control it." 1 Crancli 2!t!). And now, will this court, by a si.igle decree, overthrow liie law as settled for more than fifly years, by all the de;jartment8 of the governmenta of the states, ami of the ITnion? If hi, it must sacrifice at once a hecatomb of acts and decisions, and change tlie structure of the government itself It w uld be a judicial revolution, more sudden and overwhelm- ing in itn effects, than the last great revolutions in France and England, which were little more than changes of dynasty. 1 hove called it a revolution, not a usur- pation ; but the most daring usurper ne vrer e.ffected so sudden and extensive a change in the civil and ^lolitical rights, and settled internal policy of a nation. These have been generally spared by conqueror.s and usurpers, or if not spared, they were not subverted by a single decree, to be at once proclaimed and executed. But here, the moment this decree shall be recorded, the revolution will have commenced and terminat il. and this court will reassemble among the fragments of laws subverted, and d«"r:t*«Mini. iverthrown. Theconstitutionsof six of the states; the laws of all upon this 3> '>:''■.'.!, ad a seTies of uninterrupted judicial decisions for more than half a oeyUiUf, wii' be at once obliterated. With them will fall the acts of convresi upon Ujiq question, from the admission of the first, to the last of the new statei, and many > )nfirmatory decisions of this tribunal. This decree atTects the past, the present, and the future. Reaching back to 1788, it annuls all the state laws for- bidding the introduction of slaves, and reinslaves all, and the descendants of all that were liberated by those statutes. And all this is to be effected by a single decree, no time allowed to prepare for the mighty, change, but it is to be the work of an in- stant. So much for the past and present, and now for that dark and gloomy future, when this court, having annulled all the state laws on this subject, shall announce that it is a question over which the power of congress is supreme and exclusive. Could tne Union stand the inif^hty shock, and if it fell, shall we look upon the vic- tims of anarchy and civil war, resting wearied for the night from the 'work of death and desolation, to renew in the morning the dreadful conflict,' Throwing our eyes across the Atlantic, shall we behold the consequences, when the overthrow of this Union, this second fall of mankind, shall be there promulgated.'' Shall we there see those daring men, now pleading the cause of self-government around the thronee of monarchs, sink despairing from the conflict, amid the shouts of tyrants exulting over the prostrate liberties of man. And who can expect such a decree ftom this tribunal ? No, this court will now prove, that however passion or prejudice may •way for a time any other department of this government, here the rights of eyery section of this Union are secure. And when, as I doubt not, all shall now be informed, that over the subject of slavery, congress possesses no jurisdiction; the power of agitators will expire, and this decree will be regarded as a re-signing and r^-sealing of the constitution. ^i \^-