who were

free State?

by his master into another State, and there leaving him, under the Did it apply protection of some law declaring him free. Butler v. Hopper, 1 to slaves Wash. C. C. 499; Vaughan v. Williams, 3 McLean, 530; Pierce's allowed to Case, 1 Western Leg. Ob. 14; Kauffman v. Oliver, 10 Barr, 517; go volunStrader v. Graham, 10 How. 82; Miller v. McQuerry, 5 McLean, tarily into a 460; In the matter of Perkins, 2 Cal. 424; Commonwealth v. Alberti, 2 Par. 505. Slavery is a municipal regulation; is local ; and cannot exist without authority of law. Miller v. McQuerry, 5 McLean, 469. But the question, whether slaves are made free by going into a State in which slavery is not tolerated, with the permission of their master, is purely one of local law, and to be determined by the courts of the State in which they may be found. Strader v. Graham, 10 How. 82; Scott v. Sandford, 19 How. 396. See In the matter of Perkins, 2 Cal. 424.

It was formerly held that the President had no power to cause As to slaves fugitive slaves, who had taken refuge among the Indian tribes, to in Indian be apprehended and delivered up to their owners. 3 Opin. 370. country? But this has been since overruled, and it is now held that such fugitive in the Indian territory, being there unlawfully, and as an intruder, is subject to arrest by the executive authority of the United States; and if in such territory there be no commissioner of the United States to act, the claimant may proceed by recapture without judicial process. 6 Opin. 302.

his slaves?

The owner of a slave is clothed with full authority, in every What were State of the Union, to seize and recapture his slave, whenever he the owner's can do it without a breach of the peace, or any illegal violence. power over Prigg v. Pennsylvania, 16 Pet. 539; Norris v. Newton, 5 McLean, 92; Johnson v. Tompkins, Bald. 571; Commonwealth v. Taylor, 2 Am. L. J. 258; Van Metre v. Mitchell, 7 Penn. L. J. 115. But it is under the Constitution and acts of Congress only, that the owner of a slave has the right to claim him in a State where slavery does not exist. There is no principle in the common law, in the law of nations, or of nature, which authorizes such a recapture. Giltner v. Gorham, 4 McLean, 402. The Constitution, however, recognizes slaves as property, and pledges the federal government to protect it. Scott v. Sandford, 19 How. 395. A statute which punishes the harboring or secreting a fugitive slave, is not in conflict with the Constitution or laws of the United States. Moore v. Illinois, 14 How. 13. Nor does the Constitution exempt fugitive slaves from the penal laws of any State in which they may happen to be. Commonwealth v. Holloway, 3 S. & R. 4.

The Constitution confers on Congress an exclusive power to Is the power legislate concerning fugitive slaves; and the act of 1793 was con- of Congress stitutional and valid. Prigg v. Pennsylvania, 16 Pet. 539; In the exclusive? matter of Martin, 2 Paine, 348; Jones v. Vanzandt, 2 McLean, 612; In the matter of Susan, 2 Wheat. Cr. Cases, 594.

The Constitution and laws do not confer, but secure, the right to reclaim fugitive slaves against State legislation. Johnson v. Tompkins, Bald. 571; Giltner v. Gorham, 4 McLean, 402. The act of 18th Sept. 1850, was constitutional and valid. Ableman v. Booth, 21 How. 526; Sims' Case, 7 Cush. 285; Long's Case, 3 Am. L. J. 201; 1 Blatch. 685; 6 Op. 713.

141.

The term "slave " is not used in the Constitution, and if “person means "slave," then the Constitution treats slaves as persons, and not as property, and it acts upon them as persons and not as property, though the latter character may be given to them by the laws of the States in which slavery is tolerated. Lemmon v. People, 20 N. Y. (6 Smith), 624.

228. "SHALL BE DELIVERED UP."-This contemplates summary and informal proceedings (not a suit), and a prima facie case of ownership only. (Somerset's Case, 20 State Trials, 79.) Story's Const. § 1812; Jack v. Martin, 12 Wend. 511; Prigg v. Pennsylvania, 16 Pet. 667; Sims' Case, 7 Cush. 731; 2 Story's Const. (3d ed.) pp. 622, 625; Wright v. Deacon, 5 S. & R. 62. The delivery is to be through the congressional enactments of Congress; and is not obligatory upon the States, through their executives or authorities. Prigg v. Pennsylvania, 16 Pet. 608; affirmed in Jones v. Vanzandt, 5 How. 225; Moore v. Illinois, 14 How. 13. The student, who may wish to calmly survey this irritating subject, which served chiefly to prepare the public mind for the effort to destroy the Union, but which has ceased to be a matter of agitation since the destruction of slavery, is recommended to read attentively the last-named cases (which are also carefully reported in Story's Const. § 1812a, 18126), and Glen v. Hodges, 9 Johns. 62; Wright v. Deacon, 5 Serg. & R. 62; Commonwealth v. Griffith, 2 Pick. 211; Jack v. Martin, 12 Wend. 311; S. C. 12 Wend. 507; Wheeler's Law of Slavery; Cobb on Slavery; The Debates of 1850, 1860, and 1861; The Report of the Committee of Thirty-one in 1861, and the authorities cited in these notes.

This clause of the Constitution was, in character, precisely a treaty. It was a solemn compact, entered into by the delegates of States then sovereign and independent, and free to remain so, on great deliberation, and on the highest considerations of justice and policy, and reciprocal benefit, and in order to secure the peace and prosperity of all the States. (Sims' Case, 7 Cushing (Mass.) 285.) Story's Const. (3d ed.) § 1812b, note 1, pp. 615, 616. Miller v. McQuerry, 5 McLean, 469; Henry v. Lowell, 16 Barbour; Commonwealth v. Griffith, 2 Pick. 11; Wright v. Deacon, 5 Sergt. & Rawle, 62.

And see

This clause was designed to provide a practicable and peaceable mode, by which such fugitive, upon the claim of the person to whom such labor or service should be due, might be delivered up. Sims' Case, 7 Cush. 288. The law of 1793 (7 St. 302), for delivering up without trial, was constitutional. Commonwealth v. Griffith, 2 Pick. 11; Wright v. Deacon, 5 S. & R. 62; Jack v. Martin, 12 Wend. 311; Hill v. Low, 4 Wash. C. C. 327; Prigg v. Pennsylvania, 16 Pet. 539; Johnson v. Tompkins, Baldwin, 371; Jones v. Vanzandt, 5 How. 215, 229. The fugitive must not only have owed service or labor in another State, but he must have escaped from it. (Commonwealth v. Fitzgerald, 7 Law Reports, 379; Commonwealth v. Avis, 18 Pick. 193.) Sims' Case, 7 Cush. 728.

SEC. III. [1.] New States may be admitted by the Congress into this Union, but no new State shall be

restrictions?

229.

formed or erected within the jurisdiction of any other with what State; nor any State be formed by the junction of two or more States, or parts of States, without the consent of the legislatures of the States concerned, as well as of the Congress.

229. "NEW STATES are others than those which formed the What is a Constitution. "States" is here used in a broader sense than in State? the second and third sections of this article. Out of whatever ter- 226, 28. ritory such States may be created, it seems to be settled that it belongs to Congress to determine when a State shall be added to the Union; and when admitted, the State becomes an equal in the Union.

For a history of the subject, see Confederation, ante, Art. XI., p. 19; Scott v. Sandford, 19 How. 395; Journals of Convention, p. 222, 305–311; 2 Pitk. Hist. ch. 11, pp. 19, 36; 1 Kent's Com. Lect. 10, pp. 197, 198; 1 Secret Journals of Congress in 1775, 368386, 433-446; 1 Tuck. Black. Com. App. 383, 386; 6 Journal of Congress, 10th Oct., 1780, p. 213; 7 Id. 1st March, 1781, pp. 4348; Land Laws U. S. Int. chap; Story's Const. § 1316. These give the history and the early legislation in regard to the crown lands. And see Federalist, Nos. 38, 42, 43; Am. Ins. Company v. Canter, 1 Pet. 511, 542; The Ordinance of the 13th July, 1787; 3 Story's Laws, App. 2073; 1 Tuck. Black. Com. App. 278, 282; St. And for a very full discussion, see Scott v. Sandford, 19 How. 395. Much of this "Dred Scott" opinion is also given in Story's Const. § 1318, note 1, pp. 193-226. As an historical review, the opinions, and the vast range of discussion which they called forth, are valuable. And see Webster's Speeches, &c., 360-364. From so vast a range, which filled the whole political literature of the country and formed the platforms of political parties, it would be useless to make citations.

This clause enabled Congress to admit new States; it refers to What terriand includes new States to be formed out of this territory, expected tory did the to be thereafter ceded by North Carolina and Georgia, as well as clause include? new States to be formed out of territory northwest of the Ohio, which then had been ceded by Virginia. Scott v. Sandford (Justice Curtis), 19 How. 611, 612; 2 Story's Const. 3 ed. p. 212.

The Constitution confers absolutely on the government of the 117, 118, 178. Union the powers of making war and treaties: consequently the power of acquiring territory either by conquest or treaty. (American Insurance Company v. Canter, 1 Pet. 542; sco Cerre v. Portot, 6 Cr. 336.) Scott v. Sandford, 19 How. 395; 2 Story's Const. 3d ed. p. 213; Cross v. Harrison, 16 How. 189. And see Fleming v. Page, 9 How. 614.

did the

The Confederate States Constitution imposed this restriction upon What rethe admission of new States into the Confederacy: "Other States striction may be admitted into the Confederacy by a vote of two-thirds of Confederate the whole House of Representatives, and two-thirds of the Senate States -the Senate voting by States." Paschal's Annotated Digest, p. 93, impose? Art. IV., sec. 3, cl. 1.

What is the power of Territorial

govern

States?

The territorial legislatures cannot, without permission from Congress, pass laws authorizing the formation of Constitutions and State governments. All measures commenced and prosecuted ments as to with a design to subvert the territorial government, and to estabforming new lish and put in force in its place a new government, without the consent of Congress, are unlawful. But the people of any Territory may peaceably meet together in primary assemblies, or in conventions chosen by such assemblies, for the purpose of petitioning Congress to abrogate the territorial government, and to admit them into the Union as an independent State; and if they accompany their petition with a Constitution framed and agreed on by their primary assemblies, or by a convention of delegates chosen by such assemblies, there is no objection to their power to do so, nor to any measures which may be taken to collect the sense of the people in respect to it: provided such measures be prosecuted in a peaceable manner, in subordination to the existing government, and in subserviency to the power of Congress to adopt, reject, or disregard them at their pleasure. 2 Opin. 726. And see the practice in the admission of Maine, Vermont, Tennessee, Kentucky, and all the States since, including West Virginia; from the differences in which it would appear that there is no uniform rule for the admission of new States. Hickey's Const. ch. 8, p.

What new States have been admitted, and when?

Ohio?

Indiana?

230. Under this section the following States have been admitted :

VERMONT, formed from part of New York, by act of Feb. 18, 1791, which took effect March 4, 1791. 1 Stat. 191; Brightly's Vt. & Ky.? Dig. 894. KENTUCKY, formed from part of Virginia; by act of Feb. 4, 1791, which took effect June 1, 1792. 1 Stat. 189; Brightly's Tennessee? Dig. 455. TENNESSEE, formed from territory ceded to the U. S. by North Carolina, by act of June 1, 1796, which took effect from date. 1 Stat. 491; Brightly's Dig. 863. OHIO, formed from territory ceded to the U. S. by Virginia, by act of Feb. 19, 1803, which took effect from date. 2 Stat. 201; Brightly's Dig. 708. Louisiana? LOUISIANA, formed from part of the territory purchased of France, by treaty of April 30, 1803; by act of April 8, 1812, which took effect from date. 2 Stat. 701; Brightly's Dig. 582. INDIANA, formed of part of territory ceded to the U. S. by Virginia, by act of Dec. 11, 1816, which took effect from date. 3 Stat. 399; BrightMississippi? ly's Dig. 416. MISSISSIPPI, formed from part of the territory ceded to U. S. by Georgia and South Carolina, by act of Dec. 10, 1817, which took effect from date. 3 Stat. 472; Brightly's Dig. 640. ILLINOIS, formed from part of the territory ceded to U. S. by Virginia, by act of Dec. 3, 1818, which took effect from date. 3 Stat. 536; Brightly's Dig. 310. ALABAMA, formed from part of the territory ceded to United States by Georgia and South Carolina, by act of Dec. 14, 1819, which took effect from date. 3 Stat. 608; Brightly's Dig. 29. MAINE, formed from part of Massachusetts, by act of March 3, 1820, which took effect March 15, 1820. 3 Stat. 544; Brightly's Dig. 590. MISSOURI, formed from part of the "Louisiana Purchase," by act of March 2, 1821; which took effect Aug. 10, Arkansas? 1821. 3 Stat. 645; Brightly's Dig. 617. ARKANSAS, formed

Illinois ?

Alabama?

Maine?

Missouri?

from part of the "Louisiana Purchase," by act of June 15, 1836, which took effect from date. 5 Stat. 50; Brightly's Dig. 45. MICHIGAN, formed from part of the territory ceded to United States Michigan? by Virginia, by act of June 15, 1836, which took effect from date. 5 Stat. 49; Brightly's Dig. 614. FLORIDA, formed from territory Florida? purchased from Spain under treaty of Feb. 22, 1819, by act of March 3, 1845, which took effect from date. § 1, 5 Stat. 742; Brightly's Dig. 288. Iowa, by act of March 3, 1845, which took Iowa? effect from date. 5 Stat. 742; boundaries readjusted, Aug. 4, 1846. § 1, 9 Stat. 52. Readmitted Dec. 28, 1846. § 1, 9 Stat. 117; Brightly's Dig. 442, 444. TEXAS, an independent republic, annexed Texas? Dec. 29, 1845, by act of that date. 9 Stat. 1; Brightly's Dig. 872; Calkin v. Cocke, 14 How. 227; Paschal's Dig. 46, note 159. WIS- Wisconsin ? CONSIN, by act of May 29, 1848, which took effect from date. 9 Stat. 57; Brightly's Dig. 906. CALIFORNIA, formed from part of the ter- California? ritory ceded to U. S. by Mexico, by treaty of Hidalgo, Feb. 3, 1848;

by act of Sept. 9, 1850. 9 Stat. 452; Brightly's Dig. 105. MINNESOTA, Minnesota ? formed from part of the "Louisiana Purchase," by act of May 11, 1858, which took effect from date. 11 Stat. 285; 2 Brightly's Dig. 301. OREGON, see Treaties of the U. S. with France, of April 30, Oregon? 1803, with Spain, Feb. 22, 1819; with Great Britain, June 15, 1846; admitted by act of Feb. 14, 1859. 11 Stat. 383; Brightly's Dig. 349. KANSAS, formed from part of the "Louisiana Purchase," by act of Kansas? Jan. 29, 1861, which took effect from date. 12 Stat. 126; Brightly's Dig. 278. WEST VIRGINIA, formed of certain counties of Virginia, West Va.? by act of Dec. 31, 1862. 12 Stat. 633; admitted by same act, to date from June 20, 1863, by proclamation of the President. Appendix, 12 Stat. ii. NEVADA, formed from part of California. Nevada? by act of March 21, 1864. 13 Stat. 32. To take effect, Oct. 31, 1864, the date of proclamation of the President. Appendix, 13

Stat. ii. NEBRASKA, formed from part of the "Louisiana Pur- Nebraska? chase," by act of Feb. 9, 1867, which took effect from date. Stat. 391.

14

For the enabling acts and manner of admission, see Hickey's Constitution, chap. 10, pp. 405-449. And see Cross v. Harrison, 16 How. 189.

All Congress intended (by the enabling act of 1811), was to What is the declare in advance to the people of the territory, the fundamental object of an principles which their Constitution should contain; this was very act? enabling proper under the circumstances; the instrument having been duly formed and presented, it was in the national legislature to judge whether it contained the proper principles, and to accept it if it did,

of the Con

or reject it if it did not. Having accepted the Constitution and ad- What is the mitted the State, "on an equal footing with the original States," in effect of the all respects whatever in express terms, by the act of 1812, Con- acceptance gress was concluded from assuming that the instructions contain- stitution? ed in the act of 1811, had not been complied with. No fundamental principles could be added by way of amendment, as this would have been making part of the State Constitution. If Congress could make it in part, it might, in form of amendment, make it entire. Permoli v. First Municipality, 1 How. 610. But see the act of Congress of 9th Feb., 1867, requiring the agreement by the legislature 17, 18.