Nor in my judgment, will the position, that a prohibition to bring slaves into a Territory
deprives any one of his property without due process of law, bear examination.

It must be remembered that this restriction on the legislative power is not peculiar to the
Constitution of the United States; it was borrowed from Magna Charta; was brought to America
by our ancestors, as part of their inherited liberties, and has existed in all the States, usually in the
very words of the Great Charter. It existed in every political community in America in 1787,
when the Ordinance prohibiting slavery north and west of the Ohio was passed.

And if a prohibition of slavery in a Territory in 1820 violated this principle of Magna
Charta, the Ordinance of 1787 also violated it; and what power had, I do not say the Congress of
the Confederation alone, but the Legislature of Virginia, or the Legislature of any or all the States
of the Confederacy, to consent to such a violation? The people of the States had conferred no
such power. I think I may at least say, if the Congress did then violate Magna Charta by the
Ordinance, no one discovered that violation. Besides, if the prohibition upon all persons, citizens
as well as others, to bring slaves into a Territory, and a declaration that if brought they shall be
free, deprives citizens of their property without due process of law, what shall we say of the
legislation of many of the slaveholding States which have enacted the same prohibition? As
early as October, 1778, a law was passed in Virginia, that thereafter no slave should be imported
into that Commonwealth by sea or by land, and that every slave who should be imported should
become free. A citizen of Virginia purchased in Maryland a slave who belonged to another
citizen of Virginia, and removed with the slave to Virginia. The slave sued for her freedom, and
recovered it; as may be seen in Wilson v. Isbel, 5 Call. 425. [A] similar law has been recognized
as valid in Maryland, in Stewart v. Oakes, 5 Harr. & Johns, 107. I am not aware that such laws,
though they exist in many States, were ever supposed to be in conflict with the principle of
Magna Charta incorporated into the state constitutions. It was certainly understood by the
Convention which framed the Constitution, and has been so understood ever since, that, under
the power to regulate commerce, Congress could prohibit the importation of slaves; and the
exercise of the power was restrained till 1808. A citizen of the United States owns slaves in
Cuba, and brings them to the United States, where they are set free by the legislation of
Congress. Does this legislation deprive him of his property without due process of law? If so,
what becomes of the laws prohibiting the slave trade? If not, how can a similar regulation
respecting a Territory violate the 5th Amendment of the Constitution.

For these reasons, I am of the opinion that so much of the several Acts of Congress as
prohibited slavery and involuntary servitude within that part of the Territory of Wisconsin lying
north of thirty-six degrees thirty minutes north latitude, and west of the River Mississippi, were
constitutional and valid laws.

In my opinion, the judgment of the Circuit Court should be reversed, and the cause
remanded for a new trial.

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