Page:A legal review of the case of Dred Scott, as decided by the Supreme Court of the United States.djvu/34

 Peters, as repeating and reaffirming what had been there decided. Cross v. Harrison, 16 Howard, 193, 194.

The opinions of the judges who maintain that congress had no power to prohibit slavery in the Louisiana Territory, are founded upon positions so various, and sometimes even contradictory, that we must examine them separately. It is difficult to account for the comparative silence of a judge of the vigor of mind and uncommon independence of Mr. Justice Grier—remarkable, even above his brethren, for expressing his own opinion, whether of concurrence or dissent, but who in this case contents himself with simply concurring with the Chief Justice—excepting upon the supposition that his own mind was not entirely convinced, but that he was willing to yield on this question to the opinion of the majority of his brethren.

Of the opinions expressed, the first in logical order, because most restrictive of the power of congress, is that of Mr. Justice Campbell. This opinion presents, in a subtle and ingenious manner, the view of an able lawyer and statesman of what may be called the extreme Southern school; and so long as he remains upon the bench of the supreme court, there will be no danger that the views of the strongest advocates of State rights will be overruled without full discussion. A very good illustration of the limited, not to say narrow, construction which this school gives to the Constitution, is found in this opinion. Mr. Justice Campbell thinks that the Territory spoken of in the Constitution is simply the land, belonging to the United States, and that the power to establish rules and regulations is purely incidental, and "is restricted to such administrative and conservatory acts as are needful for the preservation of the public domain and its preparation for sale or disposition." p. 514. His principal argument in support of this view is, that the men, who resisted with arms the assertion by Great Britain of an unlimited power of legislation over the colonies, could not have intended to grant a similar power to the federal government over the inhabitants of the Territories; and therefore the words used should receive the strictest construction. He asserts, what is indeed the necessary consequence of his doctrine, that the people of the Territory, when sufficiently numerous, must govern themselves, and adds that how much municipal power they may exercise cannot be determined by the courts of justice, but must depend on political considerations.

It is a sufficient answer to this argument, which is advanced by no other one of the judges, that it is in direct