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Show 400 THE DRED SCOTT CASE. snpcnor control of tho Constitution, and anterior to the adoption of thai instrument, it is ob\·ious that the inltiuition in question never had and never could have any Icgi timate and binding force. W c may seck in vain for any power in the Convcn Lion either to require or to accept a condition or rcglriction' upon the cession like tlmt in islcd on-a condition inconsisLcnt with, and destructive of, the objccL of the g-rant. 'l,he cession wns, ns recommended by the old Congress in 1780, made originally and complc!cd in terms to the United States, and for the benefit of the United Slates: i. c., for the proplc, all the pr>opl<~, of the United Stn.tes: the condition subsequently sought to be nnncxcd in 17 7, (declared, too, to be perpetual and immutable,) being contradictory to the terms and destructive of the purposes of the cession, and after the cession was cons tJmnutt ed, and the powers of the ceding party terminated, and the rights of the grantees, the prople of the Um'ted State,, vested, must nccc. sarily, so far, have been ab in1'ho void. With respect to the powers of the Convention to impose this inhibition, it seems to be pertinent in this place to rccnr to the opinion of one cotcmporn.ry with the establishment of the government, and whose dist ingu iKhcd services in the formation nud adoption of our national charte r, point him ont as the artifex maximus of our fcdC'ral system. James :Madison, in the year 1819, Rpcaldng with reference to the prohibitory law claimrd by Congress, then thrcatenino- tlJC very existence of the Union, remarks of the language of the second clanso of the third section of article fourth of the Constitution, "that it cannot be well extended beyond a power over the territory a.c; propwrty, and the power to make provisions really needful or necessary for the government of sct~lcrs, until ripe for admission into the Union." .Again he says, "with respect to what bas taken place in TIIE DRED SCOT'r CASE. 401 the Northwestern TcrriLor·y, it may be observed, that the ordinance giving it its distinctive character on the subject of slavcholuing procecdcc.l from the olc.l Congress, acting with the best intentions, but under a charter which contains no shadow of the authority cxcrciHcd; and it remains to be decided how far the States formcu in that tcrTilory, and admitted into the Union, arc on a difl'creut footing from its other members as to their legislative Rovcreignty. As to the power of admitting new States in to the federal compact, the questions o!fcriug thcm~elves arc, whether Congress can attach conditions, or the new Stales concur in conditions, which after admission would abridge or e11lm·ge the constitutional rights of legislation common to olher States: whether Congress can, by a compact with a new State, take power to or from itself, or plncc the new member above or below the equal rank au<l rights preserved by the others; whether all such stip ul ations, expressed or implied, would not be nulli ties, aud be so pronounced when brought to a practical test. JL fall1:l wi thin the scope of our inquiry to slate the fact, that lltcrc was a proposi Lion in the Convention to eli ·criminate between the old anu the llCW States by an article in the Con titution. rrhc proposition, happily, was r ejected. rrhc effect of such a discrimination is Rufficicntly eviucnt." In support of the ordinance of 1787, there may be adduced the scrublance, at least, of obligation deducible from compact, the fo'rrn, of assent or agreement between tho grantor and grantee; but this form, or simil itude, as is justly remarked by l\{r. Madison, is rclH]cred null by tho absence of power or authority in the co1ttracting parties, and by the more intrinsic and cs. entia! defect of incompatibility wilh the rights nnd ~wowc11 purposes of those parties, and with their relative dnties unu ouligations to others. If, then, with the attendant jor·1nalities of assent, or compact, the restrictive power claimed was void as to the immediate 26 |