which we are driving, and I protest against the | who will say, that notwithstanding she is recogassumption of the existence of any such power in the federal government.

nized as a state of the Union, the federal government has a right to prohibit those slaves from being brought into that state? Is it not an institution clearly under her own control, over which the federal government has no power? If

under the commercial clause, it is putting the slave institution in the states, entirely under the control of the federal government.

It has been said also, that the slave property is further protected because the constitution of the United States declares that private property shall not be taken without compensation-anot, if we admit that congress has that power, similar provision to the one existing in our state constitution. It is not addressed to the state power or authority at all, but it is addressed entirely to the exercise of the power in the federal constitution by congress sitting under it. It has nothing to do with the state institutions or the exercise of state power at all. I will read the decision on this point in the case of Barrow vs. the Mayor of Baltimore-7th Peters, page 243.

"The provision declaring that private property shall not be taken for public use without 'just compensation, is intended solely as a limitation on the exercise of the power by the government of the United States, and is not applicable to the legislation of States. Limitations of power, if expressed in general terms, are necessarily applicable to the government 'created by the instrument, and not to distinct governments formed by different persons and for different purposes."

If this power extends to one state, under this commercial clause, it must extend to all. That Congress should have the power to say what shall or shall not be brought into Kentucky, but shall not have the same power with regard to Indiana or Ohio, is a proposition that will not bear even a moment's scrutiny. Wherever they have any power under the constitution it is unlimited in its exercise within the sphere of the limits of the United States, and can be applied to every state, territory, and nook, and corner in this nation. The power is not subordinate to that of the state; the state power always, when it comes in conflict with that of the federal government, is subordinate and succumbs to it. In the great case of Graves vs. Slaughter, which went up to the United States supreme court from Louisiana, this part of the constitution was touched upon and argued in a manner so able as to draw forth the highest encomiums of the court. Judge McLean on this subject said:

"Can the transfer and sale of slaves, from one state to another, be regulated by Congress, under the commercial power?

*

As to the remarks of the gentleman from Nelson, (Mr. Hardin,) I concur in all he said in relation to the origin of our title to slave property, and indeed in every thing he said to which he gave the sanction of his opinion. But does he wish to have the idea inferred from his argument, that the delegation of the commercial power in the "If a state may admit or prohibit slaves at federal constitution-the power to regulate com- its discretion, this power must be in the state, merce between the several states, Indian tribes, and not in Congress. The constitution seems &c.-places a restriction upon our power over 'to recognize the power to be in the states. The our slave property? I did not understand him importation of certain persons, meaning slaves, as giving his opinion that such was the fact, which was not to be prohibited before eighteen but only as referring to it as an argument, which hundred and eight, was limited to such states, he used in 1833, when we were both much then existing, as shall think proper to admit younger than now, to keep the non-importation them. Some of the states at that time prohibislave law from being passed. The gentleman isted the admission of slaves, and their right to too good a lawyer, and too enlightened and do so was as strongly implied by this provision candid a man, to say to this house, that he beWas the right of other states that admitted lieves that the clause of the constitution of the them." United States applies to this subject, and reaches the matter of commerce in slaves. He would never throw the weight of his character and judgment into that scale. The federal constitution, when speaking of the regulation of commerce between the states, refers to the ordinary subjects of commerce. It does not apply to "persons," as negroes are designated in that in- "The power over slavery belongs to the states strument, and they are not within the scope of respectively. It is local in its character, and in the federal power. Why, if Congress can pass 'its effects; and the transfer or sale of slaves an act permitting us to bring slaves into Ken-cannot be separated from this power. It is, intucky, can they not also pass a law prohibiting deed, an essential part of it. us from doing so? Suppose this was a new state that there were not an hundred slaves in its whole population, and that we desired to have slavery, can the congress of the United States, legally under its constitution, say that we shall not bring them here, notwithstanding every body desired that we should? I deny that congress has any power over the subject, derived either from the commercial clause in the constitution, or from any other source. The negroes of the southern country are going into Texas in great numbers, and is there any one

"The constitution treats slaves as persons. "The character of property is given them by local law. This law is respected, and all rights under it are protected by the fedslaves as persons, and not as property. * eral authorities; but the constitution acts upon

"Each state has the right to protect itself against the avarice and intrusion of the slave dealer; to guard its citizens against the inconveniences and dangers of a slave population.— The right to exercise this power, by a state, is higher and deeper than the constitution. The evil involves the prosperity, and may endanger the existence of a state. Its power to guard against, or to remedy the evil, rests upon the law of self-preservation; a law vital to every community, and especially to a sovereign 'state."

I will now read a short extract from Chief read to this convention, and the decisions of the Justice TANEY: same courts. Now let me understand the prop"I had not intended to express an opinion osition contained in the decision, which the gen'upon the question raised in the argument in re-tleman has read to this convention, and upon lation to the power of congress to regulate the 'traffic in slaves between the different states, because the court have come to the conclusion, in 'which I concur, that the point is not involved in the case before us. But, as my brother McLean 'has stated his opinion upon it, I am not willing, 'by remaining silent, to leave any doubt as to

the gentleman, and maintain it too, that grant try fail in their character, unless that wild spirit was an obligation or contract, between the state of fanaticism which, under the reign of terror, of Virginia, who granted it, and the grantees un- drove the French people to desperation, and inder the act. I mean to tell him it was a contract duced them to parade through the streets of Paris which the legislature of Virginia had not the that singular goddess of reason and worship her power to rescind or impair. What is that con- in preference to the holy religion, that great tract? It is the contract on the part of the state, spirit which lies at the foundation of law, and that it will not re-take from the grantee that which gives strength and value to all that we which it has granted to him. That is the con- hold dear on earth, and the results of the disretract. I bring up the question here, whether it gard of which were exhibited in the bloody rule is in the power of this convention to impair that of a Robespierre, a Danton, a Murat-never, uncontract, and to declare its obligations void?- less influenced by these impulses, could the peoThat is the question I present to the gentleman. ple of Kentucky arrive at such a conclusion. This state can also make a contract with its cit- And it was to guard against this, against the izens, that it will not take the property which it outbreaks of fanaticism, and the terror of a wild has recognized as theirs, without making them mobocracy, who might, in a moment of despera-. compensation therefor. And I maintain that tion, seek to impair the obligation of contracts, the state did make a contract, a most solemn one, that these great principles were thrown around that it would not take the property from the cit- the constitution to protect them. This was the izen, under the constitution of the years 1792 and object of inserting this provision in the constitu1798. It guarantied this property, and that guar- tion, and I will demonstrate it by the opinion of antee is a contract. What is it? The state those who will have weight with all within the invited the citizens of Virginia to settle in Ken- sound of my voice. I refer to the great case of tucky, then a territory, and the people then liv- Fletcher against Peck, which went up from the ing here she invited to remain here, as their fu- state of Georgia to the United States supreme ture home; and held out to them all the beauti-court, and I intend to show by the arguments ful prospect which spread around them, as a and decisions on that occasion, that the section reason why they should emigrate here, and why of the constitution of Kentucky alluded to, is a those living here should remain. And it held solemn contract between the state and the citiout another inducement. It was that their prop-zen, which is not to be disregarded or violated. erty should be protected. Yes, this was another 1 believe the gentleman from Madison holds that great inducement held out, that their property the state can make no contract as a law, unless should be protected and not violated, and the with regard to a corporation, or something of state entered with the citizens, into this con- that sort. tract, this agreement:

Mr. TURNER. What I said was, that ordi"No person shall, for the same offence, benary laws were not contracts. They were such twice put in jeopardy of his life or limb; nor when release of lands and powers were made by 'shall any man's property be taken or applied to the state to individuals, but the commonwealth 'public use, without the consent of his represen- never owned the negroes, or the personal propertative, and without just compensation being ty of the country. 'previously made to him."

Mr. DIXON. I make no point of it then. I never dispute with a gentleman if he agrees with me. If the gentleman does I am glad of it as it takes from me the duty of meeting his remarks. I hope the convention will attend to me in the reading of this decision, as it is very important and bears directly on the whole question. It is due to themselves and to the whole country, that this question should be understood. I will read:

Now what is the contract? "Nor shall any man's property be taken, for the public use, without his consent, and without compensation being made to him." In this the state agrees with the citizen, that it will not take his property without his consent, or without compensation to him. What does the citizen agree with the state? Why, that if the public good requires it, you may take my property by making compensation for it. Here is the agreement, clear "The legislature of Georgia was a party to and specific. It is a solemn contract between this transaction; and for a party to pronounce the state and the citizen; the state guaranteeing its own deed invalid, whatever cause may be and binding itself, that she will not take his assigned for its invalidity, must be considered property without paying him for it, and the cit- as a mere act of power, which must find its vinizen binding himself, that if the public good re-dication in a train of reasoning not often heard quires it, the state may take it from him on pay-in courts of justice.

ment therefor. And will you tell me that this is "If the legislature be its own judge in its own not a contract? What is it, if it is not a con-case-[that is the very power which I deny tract, an agreement, a promise; a solemn pledge here] it would seem equitable that its decision to the people, which can never be violated with should be regulated by those rules which out sinking the character of the state into that of would have regulated the decision of a judicial dishonor and degradation? Judge Underwood, tribunal. The question was, in its nature, a a man of talents and an honor to Kentucky,question of title, and the tribunal which decided although an emancipationist, has said, that this it was either acting in the character of a court of obligation cannot be violated without dishonor justice, and performing a duty usually assigned to a court, or it was exerting a mere act of power Could the people, or will they ever in Ken-in which it was controlled only by its own will. tucky, violate it, unless mobocracy shall be su- "If the legislature felt itself absolved from preme, unless reason itself shall be dislodged, those rules of property which are common to all unless the spirit of the institutions of the coun-'the citizens of the United States, and from those

or fraud.

principles of equity which are acknowledged | which it may enter into with me in the form of in all our courts, its act is to be supported by a constitutional or statute law? That is a power its power alone; and the same power may di- which I utterly repudiate and deny. Here the vest any other individual of his lands, if it discussion comes right to the point. 'shall be the will of the legislature so to ex'ert it.

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Is the power of the legislature competent to 'the annihilation of such title, and to the re"It is not intended to speak with disrespect sumption of the property thus held?" of the legislature of Georgia, or of its acts. The state granted to the citizens all the great Far from it. The question is a general ques-landed estates, and has no power to divest them tion, and is treated as one. For though such of it, and to resume them. Has it the power to 'powerful objections to a legislative grant, as are do it? The gentleman maintains that it has the alleged against this, may not again exist, yet power-that this convention stands as the repthe principle, on which alone this rescinding resentative of the sovereignty of the people of act it is to be supposed, may be applied to eve- the state, and that its powers are unlimited in ry case to which it shall be the will of any regard to any extent it may think proper to exlegislature to apply it. The principle is this. ercise it: that a legislature may, by its own act, divest 'the vested estate of any man whatever, for reasons which shall, by itself, be deemed suffi'cient."

"The principle asserted is, that one legislature is competent to repeal any act which a former legislature was competent to pass; and 'that one legislature cannot abridge the powers ' of a succeeding legislature."

gation of the man who makes the sale, if you declare that the title derived from you is not binding. The obligation can be severed, or our action amounts to nothing at all. For the state of Georgia, in conveying the lands to her citizens, acted on the implied obligation that she would not take back that property. It was so regarded by the Judges of the Supreme Court of the United States, and to which the inhibition in the section which declares that no state shall pass laws impairing the obligations of contract, was intended to apply. If that implied obligation came within that inhibition, is it not clear that it applies as well to your interference with obligations between the citizens, as to obligations between the citizen and the state? The gentleman strikes at that, and in any attempt to break down the titles to slave property, he must destroy the contract between individuals; because, in the act of manumission, you destroy the title to the property you set free, as derived from the laws of the state, and being derived also from another individual, it becomes a great question as to the power of the state of Kentucky to impair the obligations between another individual and me. But I will not argue that point now, but confine myself to the question between the

Now you have the whole case spread before you. The legislature may, by its own act, di- What has been done under the constitution of vest any right in this commonwealth of which Kentucky, the great organic law of the state? they may think proper to divest the citizen. I Negroes were brought into the state under it, and deny that, and maintain here that it cannot be it was an act done under the sanction of law. done under that clause in the constitution of the Negroes have been purchased under it, and that United States declaring that the states shall pass was an act done under the law. If I purchase no law impairing the obligation of contracts. one from you, the title to the negro is to be bro"In this case the legislature may have had ken up the obligation between you and me, 'ample proof that the original grant was obtained you being the grantor to me, is to be violated, by practices which can never be too much repro- by this all-sweeping power of the convention of 'bated, and which would have justified its abro-Kentucky. Because you must violate the obligation so far as respected those to whom crime was imputable. But the grant, when issued, 'conveyed an estate in fee simple to the grantee, clothed with all the solemnities which law can 'bestow. This estate was transferable; and those who purchased parts of it were not stained by that guilt which infected the original transaction. Their case is not distinguishable from the ordinary case of purchasers of a legal estate without knowlege of any secret fraud which 'might have led to the emanation of the original grant. According to the well known course of equity, their rights could not be affected by 'such fraud. Their situation was the same, their 'title was the same, with that of every other 'member of the community who holds land by 'regular conveyances from the original patentee.' But according to the power asserted here by gentlemen in this convention, they occupy no such attitude. The innocent purchaser under the grant of the state of Virginia, before the convention of Kentucky in its sovereign capacity organized a constitution, occupied the very identical ground, so far as taking from him his vested rights is concerned, as the individual who purchased of him, who was guilty of the fraud imputed to the grantees under the patents issued by the state of Georgia. There is no dif-state and its citizens: ference between them. And that is the argument "The correctness of this principle, so far as rethat gentlemen proclaim in asserting the right of spects general legislation, can never be controthe sovereignty of Kentucky to seize upon private verted. But, if an act be done under a law, a rights and use and apply them in whatever man- succeeding legislature cannot undo it. The past ner they think proper, and which they ask cannot be recalled by the most absolute power. Conthe convention to assert and proclaim through- 'veyances have been made; those conveyances out the country. The great point is this-hashave vested legal estates; and if those estates the state of Kentucky, in its sovereign capacity, the power to take from me those vested rights which it has been instrumental in bestowing upon me, or of violating any other agreement

may be seized by the sovereign authority, still, that they originally vested is a fact, and cannot cease to be a fact."

Now you will understand that the proposition

before the supreme court was to take away from and this, says Blackstone, differs in nothing the person who purchased the property, the title from a grant. The contract between Georgia which the state had granted, and to take away and the purchasers was executed by the grant. subsequently the same property to which indi- 'A contract executed, as well as one which is exviduals had acquired a title under the recipientsecutory, contains obligations binding on the of the state grants. Two propositions arise-parties. A grant, in its own nature, amounts first, the power to abrogate the contract between to an extinguishment of the right of the grantthe state and the citizen, and next the power to or, and implies a contract not to reassert that abrogate the contract between the citizens them-right. A party is, therefore, always estopped selves the one purchasing lands through a con-by his own grant." tract with the other. And you will find that the decision of the court is, that the sovereign power of the State of Georgia cannot deprive either one nor the other of his property. I will

Since then, in fact, a grant is a contract executed, the obligation of which still continues; and since the constitution uses the general term contracts, without distinguishing between those which are executory and those which are execu“When, then, a law is in the nature of a con-ted, it must be construed to comprehend the lat'tract; when absolute rights have vested under ter as well as the former. A law annulling con'that contract; a repeal of that law cannot di-veyances between the individuals, and declarvest those rights; and the act of annulling 'them, if legitimate, is rendered so by a power applicable to the case of every individual in 'the community."

"Whatever respect might have been felt for state soverelgnties, it is not to be disguised that 'the framers of the constitution viewed, with "In considering this very interesting question, some apprehension, the violent acts which grow "we immediately ask ourselves, what is a con- out of the feelings of the moment; and that the 'tract? Is a grant a contract? A contract is a people of the United States, in adopting that 'compact between two or more parties, and it is instrument, have manifested a determination to 'either executory or executed. An executory shield themselves and their property, from the 'contract is one in which a party binds himself effects of those sudden and strong passions to 'to do, or not to do, a particular thing; such was 'which men are exposed. The restrictions on 'the law under which the conveyance was made the legislative power of the states are obvious'by the governor. A contract executed is onely founded in this sentiment; and the constituin which the object of the contract is performed; 'tion of the United States contains what may be