Smith Thompson

“ In the case of Gibbons v. Ogden, it was decided, that it extends to all commerce between state and state. It was held, that the whole subject of commercial regulation was taken from the states, and placed in the hands of congress. This must be so, or the whole provision would be inoperative. Nothing, which is a regulation of commerce, can be affected by state laws. Regulation is in what it is considered best to leave free and exempt from rule. Freedom of regulation, is regulation. Not declaring how action shall take place, allows the action to be performed. ”

“ If a state may admit or prohibit slaves at its discretion, this power must be in the state, and not in congress. The constitution seems to recognise the power to be in the states. The importation of certain persons, meaning slaves, which was not to be prohibited before 1808, was limited to such states, then existing, as shall think proper to admit them. Some of the states, at that time, prohibited the admission of slaves, and their right to do so was as strongly implied by this provision, as the right of other stares that admitted them.
The constitution treats slaves as persons. ”

“ But where no object of police is discernible in a state law of constitution, nor any rule of policy, other than that which gives to its own citizens a 'privilege,' which is denied to citizens of other states, it is wholly different. ”

“ It is often wiser and more politic, to forbear, than to exercise a power. A state regulates its own internal commerce, may pass inspection and police laws, designed to guard the health aud protect the rights of its citizens. But these laws must not be extended so as to come in conflict with a power expressly given to the federal government. It is enough to say, that the commercial power, as it regards foreign commerce, and commerce among the several states, has been decided by this court to be exclusively vested in congress. ”

“ Police, relates only to the internal concerns of one state, and commerce, within it, is purely a matter of internal regulation, when confined to those articles which have become so distributed as to form items in the common mass of property. ”

“ In considering this question, it is necessary to look at the situation of the slaves of Mississippi, carried into the state after May 1833, for sale as merchandize. Are they free? If they were free, it would be some consolidation. But there is no freedom for such persons in Mississippi; and those who purchased them, and seek now to escape from paying for them, continue to hold them; and against moral rectitude, insist on their ownership, acquired by a violation of the constitution of Mississippi. It would be gratifying to those who love freedom, if the negroes were free. ”

“ The genius of Fulton has given the means of protection to the slave states; and in steamboats, on the beautiful rivers of Ohio and Mississippi, the people of the Union, 'armed in proof,' would hasten to the preservation of their brethren of Mississippi, and of every state exposed to intestine commotion. ”

“ The constitution recognises slaves as property. Slaves escaping from the state in which they are held to service and labor may be arrested in other states, and carried back to the state from which they escaped. The right to take them up, is an acknowledgment of the right of property in them. ”

“ But that clause secures to the citizens of all the states, 'all privileges and immunities of citizens' of any other state, whereby any traffic in slaves or other property, which is lawful to the citizens or settlers of Mississippi, with each other, is equally protected when carried on between them and the citizens of Virginia. Hence, it is apparent, that no state can control this traffic, so long as it may be carried on by its own citizens, within its own limits; as part of its purely internal commerce, any state may regulate it according to its own policy ”

“ It is a matter of internal police, over which the states have reserved the entire control; they, and they alone, can declare what is property capable of ownership, absolute or qualified; they may continue or abolish slavery at their pleasure, as was done before, and has been done since the constitution ”

“ This is an incident to property. It is, necessarily, a right which the owner of the property has, to sell it-to bequeath it. The slaves would have been liable for the debts of the defendant in error, while in his hands unsold. It is a well-established principle, that if no forfeiture of property for an offence committed by its owner, has been declared by the legislature, the judiciary cannot impose a forfeiture. Cooper v. Telfair, 4 Dall. 16. The judiciary cannot make laws. When the statutes declare forfeitures, no sales of the prohibited articles are valid. ”

“ To consider them as persons merely, and not property, is, in my settled opinion, the first step towards state of things to be avoided only by a firm adherence to the fundamental principles of the state and federal governments, in relation to this species of property. If the first step taken be a mistaken one, the successive ones will be fatal to the whole system. ”

“ By the common law, as settled by repeated decisions of English courts, wherever a transaction contravenes the general policy or the express stipulations of the law, no form of expression is permitted to veil its inherent impropriety; the real object of each party to the contract will be examined, and if either is found to be aiming at that which is repugnant to principles established for the general benefit of society, the courts of justice will repudiate it, however artfully the arrangements have been made to accomplish the desired end. ”

“ As each state has plenary power to legislate on this subject, its laws are the test of what is property; if they recognise slaves as the property of those who hold them, they become the subjects of commerce between the states which so recognise them, and the traffic in them may be regulated by congress, as the traffic in other articles ”

“ It was a bill filed in the court of chancery, to enjoin a judgment recovered at law, upon a bond for the purchase of slaves introduced in that state after the 1st of May 1833. The chancellor refused to continue the injunction, on the ground, that the matter relied upon to obtain the injunction should have been set up as a defence in the suit at law; and this view of the case, he adds, might be decisive; but another question of some moment is raised, which must frequently arise in our courts, and which it is well to put in a train for ultimate decision ”

“ If the right in states recognising slavery exists, to prohibit trading in them, it will allow non-intercourse between the states of the Union by the legislative enactments of the states; and will authorize retailation. ”

“ For no rule is better settled, than that the effect of an exception is to take the case excepted out of the general provision, thereby excluding what would otherwise be embraced. 12 Wheat. 440. The conclusion, therefore, is inevitable, that slaves were embraced by the constitution, as the subjects of commerce and commercial regulations, to the same extent as other goods, wares or merchandize. ”

“ Cases cited in this part of the argument, 11 East 108; 5 Taunt. 181; 1 Mass. 5; 1 Maule & Selw. 593; 4 T. R. 416; 5 Ibid. 599; 3 Barn. & Ald. 221; 4 Esp. 183; 2 Str. 1247; 2 Bnrr. 1077; 3 T. R. 419; Armstrong v. Toler, 11 Wheat. 259; 1 Mass. 138; Hunt v. ”