These difficulties caused much uneasiness during the war, while the issue was in some degree doubtful, and the future boundaries of the United States yet to be defined by treaty, if we achieved our independence.

The majority of the Congress of the Confederation obviously concurred in opinion with the State of Maryland, and desired to obtain from the States which claimed it a cession of this territory, in order that Congress might raise money on this security to carry on the war. This appears by the resolution passed on the 6th of September, 1780, strongly urging the States to cede these lands to the United States, both for the sake of peace and union among themselves, and to maintain the public credit; and this was followed by the resolution of October 10th, 1780, by which Congress pledged itself, that if the lands were ceded, as recommended by the resolution above mentioned, they should be disposed of for the common benefit of the United States, and be settled and formed into distinct republican States, which should become members of the Federal Union, and have the same rights of sovereignty, and freedom, and independence, as other States.

But these difficulties became much more serious after peace took place, and the boundaries of the United States were established. Every State, at that time, felt severely the pressure of its war debt; but in Virginia, and some other States, there were large territories of unsettled lands, the sale of which would enable them to discharge their obligations without much inconvenience while other States, which had no such resource, saw before them many years of heavy and burdensome taxation; and the latter insisted, for the reasons before stated, that these unsettled lands should be treated as the common property of the States, and the proceeds applied to their common benefit.

The letters from the statesmen of that day will show how much this controversy occupied their thoughts, and the dangers that were apprehended from it. It was the disturbing element of the time, and fears were entertained that it might dissolve the Confederation by which the States were then united.

These fears and dangers were, however, at once removed, when the State of Virginia, in 1784, voluntarily ceded to the United States the immense tract of country lying northwest of the river Ohio, and which was within the acknowledged limits of the State. The only object of the State, in making this cession, was to put an end to the threatening and exciting controversy, and to enable the Congress of that time to dispose of the lands, and appropriate the proceeds as a common fund for the common benefit of the States. It was not ceded because it was inconvenient to the State to hold and govern it, nor from any expectation that it could be better or more conveniently governed by the United States.

The example of Virginia was soon afterward followed by other States, and, at the time of the adoption of the Constitution, all of the States similarly situated, had ceded their unappropriated lands, except North Carolina and Georgia. The main object for which the cessions were desired and made, was on account of their money value, and to put an end to a dangerous controversy, as to who was justly entitled to the proceeds when the land should be sold. It is necessary to bring this part of the history of these cessions thus distinctly into view, because it will enable us the better to comprehend the phraseology of the article in the Constitution, so often referred to in the argument.

Undoubtedly the powers of sovereignty and the eminent domain were ceded with the land. This was essential, in order to make it effectual, and to accomplish its objects. But it must be remembered that, at that time, there was no Government of the United States in existence with enumerated and limited powers; what was then called the United States, were thirteen separate, sovereign, independent States, which had entered into a league or confederation for their mutual protection and advantage, and the Congress of the United States was composed of the representatives of these separate sovereignties, meeting together, as equals, to discuss and decide on certain measures which the States, by the Articles of Confederation, had agreed to submit to their decision. But this Confederation had none of the attributes of sovereignty in legislative, executive, or judicial power. It was little more than a congress of ambassadors, authorized to represent separate nations, in matters in which they had a common concern.

It was this congress that accepted the cession from Virginia. They had no power to accept it under the Articles of Confederation. But they had an undoubted right, as independent sovereignties, to accept any cession of territory for their common benefit, which all of them assented to; and it is equally clear, that as their common property, and having no superior to control them, they had the right to exercise absolute dominion over it, subject only to the restrictions which Virginia had imposed in her act of cession. There was, at we have said, no Government of the United States then in existence with special enumerated and limited powers. The territory belonged to sovereignties, who, subject to the limitations above mentioned, had a right to establish any form of Government they pleased, by compact or treaty among themselves, and to regulate rights of person and rights of property in the territory, as they might deem proper. It was by a Congress, representing the authority of these several and separate sovereignties, and acting under their authority and command (but not from any authority derived from the Articles of Confederation,) that the instrument usually called the ordinance of 1787 was adopted; regulating in much detail the principles and the laws by which this territory should be governed; and among other provisions, slavery is prohibited in it. We do not question the power of the States, by agreement among themselves, to pass this ordinance, nor its obligatory force in the territory, while the confederation or league of the States in their separate sovereign character continued to exist.

This was the state of things when the Constitution of the United States was formed. The territory ceded by Virginia, belonged to the several confederated States as common property, and they had united in establishing in it a system of government and jurisprudence, in order to prepare it for admission as States, according to the terms of cession. They were about to dissolve this federative Union, and to surrender a portion of their independent sovereignty to a new Government, which, for certain purposes, would make the people of the several States one people, and which was to be supreme and controlling, within its sphere of action throughout the United States; but this Government was to be carefully limited in its powers, and to exercise no authority beyond those expressly granted by the Constitution, or necessarily to be implied from the language of the instrument, and the objects it was intended to accomplish; and as this league of States would, upon the adoption of the new Government, cease to have any power over the territory, and the ordinance they had agreed upon be incapable of execution and a mere nullity, it was obvious that some provision was necessary to give the new Government sufficient power to enable it to carry into effect the objects for which it was ceded, and the compacts and agreements which the States had made with each other in the exercise of their powers of sovereignty. It was necessary that the lands should be sold to pay the war debt; that a Government and system of jurisprudence should be maintained in it, to protect the citizens of the United States who should migrate to the territory, in their rights of person and of property. It was also necessary that the new Government, about to be adopted, should be authorized to maintain the claim of the United States to the unappropriated lands of North Carolina and Georgia, which had not then been ceded, but the cession of which was confidently anticipated upon some terms that would be arranged between the General Government and these two States. And, moreover, there were many articles of value besides this property in land, such as arms, military stores, munitions, and ships of war, which were the common property of the States, when acting in their independent characters as confederates, which neither the new Government nor any one else would have a right to take possession of, or control, without authority from them; and it was to place these things under the guardianship and protection of the new Government, and to clothe it with the necessary powers, that the clause was inserted in the Constitution which gives Congress the power "to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States." It was intended for a specific purpose, to provide for the things we have mentioned. It was to transfer to the new Government the property then held in common by the States, and to give to that Government power to apply it to the objects for which it had been destined by mutual agreement among the States before their league was dissolved. It applied only to the property which the States held in common at that time, and has no reference whatever to any territory or other property which the new sovereignty might afterward itself acquire.

The language used in the clause, the arrangement and combination of the powers, and the somewhat unusual phraseology it uses, when it speaks of the political power to be exercised in the government of the territory, all indicate the design and meaning of the clause to be such as we have mentioned. It does not speak of any territory, nor of Territories, but uses language which, according to its legitimate meaning, points to a particular thing. The power is given in relation only to the territory of the United States—that is, to a territory then in existence, and then known or claimed as the territory of the United States. It begins its enumeration of powers by that of disposing, in other words, making sale of the lands, or raising money from them, which, as we have already said, was the main object of the cession, and which is accordingly the first thing provided for in the article. It then gives the power which was necessarily associated with the disposition and sale of the lands—that is, the power of making needful rules and regulations respecting the territory. And whatever construction may now be given to these words, every one, we think, must admit that they are not the words usually employed by statesmen in giving supreme power of legislation. They are certainly very unlike the words used in the power granted to legislate over territory which the new Government might afterwards itself obtain by cession from a State, either for its seat of Government, or for forts, magazines, arsenals, dock yards, and other needful buildings. And the same power of making needful rules respecting the territory is, in precisely the same language, applied to the other property belonging to the United States—associating the power over the territory in this respect with the power over movable or personal property—that is, the ships, arms, and munitions of war, which then belonged in common to the State sovereignties. And it will hardly be said, that this power, in relation to the last-mentioned objects, was deemed necessary to be thus specially given to the new Government, in order to authorize it to make needful rules and regulations respecting the ships it might itself build, or arms and munitions of war it might itself manufacture or provide for the public service.

No one, it is believed, would think a moment of deriving the power of Congress to make needful rules and regulations in relation to property of this kind from this clause of the Constitution. Nor can it, upon any fair construction, be applied to any property, but that which the new Government was about to receive from the confederated States. And if this be true as to this property, it must be equally true and limited as to the territory, which is so carefully and precisely coupled with it—and like it referred to as property in the power granted. The concluding words of the clause appear to render this construction irresistible; for, after the provisions we have mentioned, it proceeds to say, "that nothing in the Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State."

Now, as we have before said, all of the States, except North Carolina and Georgia, had made the cession before the Constitution was adopted, according to the resolution of Congress of October 10, 1780. The claims of other States, that the unappropriated lands in these two States should be applied to the common benefit, in like manner, was still insisted on, but refused by the States. And this member of the clause in question evidently applies to them, and can apply to nothing else. It was to exclude the conclusion that either party, by adopting the Constitution, would surrender what they deem their rights. And when the latter provision relates so obviously to the unappropriated lands not yet ceded by the States, and the first clause makes provision for those then actually ceded, it is impossible, by any just rule of construction, to make the first provision general, and extend to all territories, which the Federal Goverenment might in any way afterwards acquire, when the latter is plainly and unequivocally confined to a particular territory; which was a part of the same controversy, and involved in the same dispute, and depended upon the same principles. The union of the two provisions in the same clause shows that they were kindred subjects; and that the whole clause is local, and relates only to lands, within the limits of the United States, which had been or then were claimed by a State; and that no other territory was in the mind of the framers of the Constitution, or intended to be embraced in it. Upon any other construction it would be impossible to account for the insertion of the last provision in the place where it is found, or to comprehend why, or for what object, it was associated with the previous provision.

This view of the subject is confirmed by the manner in which the present Government of the United States dealt with the subject as soon as it came into existence. It must be borne in mind that the same States that formed the Confederation also formed and adopted the new Government, to which so large a portion of their former sovereign powers were surrendered. It must also be borne in mind that all of these same States which had then ratified the new Constitution were represented in the Congress which passed the first law for the government of this territory; and many of the members of that legislative body had been deputies from the States under the confederation—had united in adopting the ordinance of 1787, and assisted in forming the new Government under which they were then acting, and whose powers they were then exercising. And it is obvious from the law they passed to carry into effect the principles and provisions of the ordinance, that they regarded it as the act of the States done in the exercise of their legitimate powers at the time. The new Government took the territory as it found it, and in the condition in which it was transferred, and did not attempt to undo any thing that that had been done. And, among the earliest laws passed under the new Government, is one reviving the ordinance of 1787, which had become inoperative and a nullity upon the adoption of the Constitution. This law introduces no new form or principles for its government, but recites, in the preamble, that it is passed in order that this ordinance may continue to have full effect, and proceeds to make only those rules and regulations which were needful to adapt it to the new Government, into whose hands the power had fallen. It appears, therefore, that this Congress regarded the purposes to which the land in this Territory was to be applied, and the form of government and principles of jurisprudence which were to prevail there, while it remained in the territorial state, as already determined on by the States when they had full power and right to make the decision; and that the new Government, having received it in this condition, ought to carry substantially into effect the plans and principles which had been previously adopted by the States, and which, no doubt, the States anticipated when they surrendered their power to the new Government. And if we regard this clause of the Constitution as pointing to this Territory, with a Territorial Government already established in it, which had been ceded to the States for the purposes hereinbefore mentioned—every word in it is perfectly appropriate and easily understood, and the provisions it contains are in perfect harmony with the objects for which it was ceded, and with the condition of its government as a Territory at the time. We can, then, easily account for the manner in which the first Congress legislated on the subject—and can also understand why this power over the Territory was associated in the same clause with the other property of the United States, and subjected to the like power of making needful rules and regulations. But if the clause is construed in the expanded sense contended for, so as to embrace any territory acquired from a foreign nation by the present Government, and to give it in such territory a despotic and unlimited power over persons and property, such as the confederated States might exercise in their common property, it would be difficult to account for the phraseology used, when compared with other grants of power—and also for its association with the other provisions in the same clause.

The Constitution has always been remarkable for the felicity of its arrangement of different subjects, and the perspicuity and appropriateness of the language it uses. But if this clause is construed to extend to territory acquired by the present Government from a foreign nation, outside of the limits of any charter from the British Government to a colony, it would be difficult to say, why it was deemed necessary to give the Government the power to sell any vacant lands belonging to the sovereignity which might be found within it; and if this was necessary, why the grant of this power should precede the power to legislate over it and establish a Government there; and still more difficult to say, why it was deemed necessary so specially and particularly to grant the power to make needful rules and regulations in relation to any personal or movable property it might acquire there. For the words, other property, necessarily, by every known rule of interpretation, must mean property of a different description from territory or land. And the difficulty would perhaps be insurmountable in endeavoring to account for the last member of the sentence, which provides that "nothing in this Constitution shall be so construed as to prejudice any claims of the United States or any particular State," or to say how any particular State could have claims in or to a territory ceded by a foreign Government, or to account for associating this provision with the preceding provisions of the clause, with which it would appear to have no connection.

The words "needful rules and regulations" would seem, also, to have been cautiously used for some definite object. They are not the words usually employed by statesmen, when they mean to give the powers of sovereignty, or to establish a Government, or to authorize its establishment. Thus, in the law to renew and keep alive the ordinance of 1787, and to re-establish the Government, the title of the law is: "An act to provide for the government of the territory northwest of the river Ohio." And in the Constitution, when granting the power to legislate over the territory that may be selected for the seat of Government independently of a State, it does not say Congress shall have power "to make all needful rules and regulations respecting the territory;" but it declares that "Congress shall have power to exercise exclusive legislation in all cases whatsoever over such District (not exceeding ten miles square) as may, by cession of particular States and the acceptance of Congress, become the seat of the Government of the United States.

The words "rules and regulations" are usually employed in the Constitution in speaking of some particular specified power which it means to confer on the Government, and not, as we have seen, when granting general powers of legislation. As, for example, in the peculiar power to Congress "to make rules for the government and regulation of the land and naval forces, or the particular and specific power to regulate commerce;" "to establish an uniform rule of naturalization;" "to coin money and regulate the value thereof." And to construe the words of which we are speaking as a general and unlimited grant of sovereignty over territories which the Government might afterward acquire, is to use them in a sense and for a purpose for which they were not used in any other part of the instrument. But if confined to a particular Territory, in which a Government and laws had already been established, but which would require some alterations to adapt it to the new Government, the words are peculiarly applicable and appropriate for that purpose.

The necessity of this special provision in relation to property and the rights or property held in common by the confederated States, is illustrated by the first clause of the sixth article. This clause provides that "all debts, contracts, and engagements entered into before the adoption of this Constitution, shall be as valid against the United States under this Government as under the Confederation." This provision, like the one under consideration, was indispensable if the new Constitution was adopted. The new Government was not a mere change in a dynasty, or in a form of government, leaving the nation or sovereignty the same, and clothed with all the rights, and bound by all the obligations of the preceding one. But when the present United States came into existence under the new Government, it was a new political body, and a new nation, then for the first time taking its place in the family of nations. It took nothing by succession from the Confederation. It had no right, as its successor, to any property or rights of property which it had acquired, and was not liable for any of its obligations. It was evidently viewed in this light by the framers of the Constitution. And as the several States would cease to exist in their former confederated character upon the adoption of the Constitution, and could not, in that character, again assemble together, special provisions were indispensable to transfer to the new Government the property and rights which at that time they held in common; and at the same time to authorize it to lay taxes and appropriate money to pay the common debt which they had contracted; and this power could only be given to it by special provisions in the Constitution. The clause in relation to the territory and other property of the United States provided for the first, and the clause last quoted provides for the other. They have no connection with the general powers and rights of sovereignty delegated to the new Government, and can neither enlarge nor diminish them. They were inserted to meet a present emergency, and not to regulate its powers as a Government.

Indeed, a similar provision was deemed necessary, in relation to treaties made by the Confederation; and when in the clause next succeeding the one of which we have last spoken, it is declared that treaties shall be the supreme law of the land, care is taken to include, by express words, the treaties made by the confederated States. The language is: "and all treaties made, or which shall be made, under the authority of the United States, shall be the supreme law of the land."

Whether, therefore, we take the particular clause in question, by itself, or in connection with the other provisions of the Constitution, we think it clear, that it applies only to the particular territory of which we have spoken, and cannot, by any just rule of interpretation, be extended to territory which the new Government might afterward obtain from a foreign nation. Consequently, the power which Congress may have lawfully exercised in this Territory, while it remained under a Territorial Government, and which may have been sanctioned by judicial decision, can furnish no justification and no argument to support a similar exercise of power over territory afterward acquired by the Federal Government. We put aside, therefore, any argument, drawn from precedents, showing the extent of the power which the General Government exercised over slavery in this Territory, as altogether inapplicable to the case before us.

But the case of the American and Ocean Insurance Companies v. Canter (1 Pet., 511) has been quoted as establishing a different construction of this clause of the Constitution. There is, however, not the slightest conflict between the opinion now given and the one referred to; and it is only by taking a single sentence out of the latter and separating it from the context, that even an appearance of conflict can be shown. We need not comment on such a mode of expounding an opinion of the court. Indeed it most commonly misrepresents instead of expounding it. And this is fully exemplified in the case referred to, where, if one sentence is taken by itself, the opinion would appear to be in direct conflict with that now given; but the words which immediately follow that sentence show that the court did not mean to decide the point, but merely affirmed the power of Congress to establish a Government in the Territory, leaving it an open question, whether that power was derived from this clause in the Constitution, or was to be necessarily inferred from a power to acquire territory by cession from a foreign Government. The opinion on this part of the case is short, and we give the whole of it to show how well the selection of a single sentence is calculated to mislead.

The passage referred to is in page 542, in which the court, in speaking of the power of Congress to establish a Territorial Government in Florida until it should become a State, uses the following language:

"In the mean time Florida continues to be a Territory of the United States, governed by that clause of the Constitution which empowers Congress to make all needful rules and regulations respecting the territory or other property of the United States. Perhaps the power of governing a Territory belonging to the United States, which has not, by becoming a State, acquired the means of self-government, may result, necessarily, from the facts that it is not within the jurisdiction of any particular State, and is within the power and jurisdiction of the United States. The right to govern may be the inevitable consequence of the right to acquire territory. Whichever may be the source from which the power is derived, the possession of it is unquestionable."

It is thus clear, from the whole opinion on this point, that the court did not mean to decide whether the power was derived from the clause in the Constitution, or was the necessary consequence of the right to acquire. They do decide that the power in Congress is unquestionable, and in this we entirely concur, and nothing will be found in this opinion to the contrary. The power stands firmly on the latter alternative put by the court—that is, as "the inevitable consequence of the right to acquire territory."

And what still more clearly demonstrates that the court did not mean to decide the question, but leave it open for future consideration, is the fact that the case was decided in the Circuit Court by Mr. Justice Johnson, and his decision was affirmed by the Supreme Court. His opinion at the circuit is given in full in a note to the case, and in that opinion he states, in explicit terms, that the clause of the Constitution applies only to the territory then within the limits of the United States, and not to Florida, which had been acquired by cession from Spain. This part of his opinion will be found in the note in page 517 of the report. But he does not dissent from the opinion of the Supreme Court; thereby showing that, in his judgment, as well as that of the court, the case before them did not call for a decision on that particular point, and the court abstained from deciding it. And in a part of its opinion subsequent to the passage we have quoted, where the court speak of the legislative power of Congress in Florida, they still speak with the same reserve. And in page 546, speaking of the power of Congress to authorize the Territorial Legislature to establish courts there, the court say: "They are legislative courts, created in virtue of the general right of sovereignty which exists in the Government, or in virtue of that clause which enables Congress to make all needful rules and regulations respecting the territory belonging to the United States."

It has been said that the construction given to this clause is new, and now for the first time brought forward. The case of which we are speaking, and which has been so much discussed, shows that the fact is otherwise. It shows that precisely the same question came before Mr. Justice Johnson, at his circuit, thirty years ago—was fully considered by him, and the same construction given to the clause in the Constitution which is now given by this court. And that upon an appeal from his decision the same question was brought before this court, but was not decided because a decision upon it was not required by the case before the court.

There is another sentence in the opinion which has been commented on, which even in a still more striking manner shows how one may mislead or be misled by taking out a single sentence from the opinion of a court, and leaving out of view what precedes and follows. It is in page 546, near the close of the opinion, in which the court say: "In legislating for them," (the territories of the United States,) "Congress exercises the combined powers of the General and of a State Government." And it is said, that as a State may unquestionably prohibit slavery within its territory, this sentence decides in effect that Congress may do the same in a territory of the United States, exercising there the powers of a State, as well as the power of the General Government.

The examination of this passage in the case referred to, would be more appropriate when we come to consider in another part of this opinion what power Congress can constitutionally exercise in a Territory, over the rights of person or rights of property of a citizen. But, as it is in the same case with the passage we have before commented on, we dispose of it now, as it will save the court from the necessity of referring again to the case. And it will be seen upon reading the page in which this sentence is found, that it has no reference whatever to the power of Congress over rights of person or rights of property—but relates altogether to the power of establishing judicial tribunals to administer the laws constitutionally passed, and defining the jurisdiction they may exercise.

The law of Congress establishing a Territorial Government in Florida, provided that the Legislature of the Territory should have legislative powers over "all rightful objects of legislation; but no law should be valid which was inconsistent with the laws and Constitution of the United States."

Under the power thus conferred, the Legislature of Florida passed an act, erecting a tribunal at Key West to decide cases of salvage. And in the case of which we are speaking, the question arose whether the Territorial Legislature could be authorized by Congress to establish such a tribunal, with such powers; and one of the parties among other objections, insisted that Congress could not under the Constitution authorize the Legislature of the Territory to establish such a tribunal with such powers, but that it must be established by Congress itself; and that a sale of cargo made under its order, to pay salvors, was void, as made without legal authority, and passed no property to the purchaser.

It is in disposing of this objection that the sentence relied on occurs, and the court begin that part of the opinion by stating with great precision the point which they are about to decide.

They say: "It has been contended that by the Constitution of the United States, the judicial power of the United States extends to all cases of admiralty and maritime jurisdiction; and that the whole of the judicial power must be vested 'in one Supreme Court, and in such inferior courts as Congress shall from time to time ordain and establish.' Hence it has been argued that Congress can not vest admiralty jurisdiction in courts created by the Territorial Legislature."

And after thus clearly stating the point before them, and which they were about to decide, they proceed to show that these Territorial tribunals were not constitutional courts, but merely legislative, and that Congress might, therefore, delegate the power to the Territorial Government to establish the court in question; and they conclude that part of the opinion in the following words: "Although admiralty jurisdiction can be exercised in the States in those courts only which are established in pursuance of the third article of the Constitution, the same limitation does not extend to the Territories. In legislating for them, Congress exercises the combined powers of the General and State Governments."

Thus it will be seen by these quotations from the opinion, that the court, after stating the question it was about to decide in a manner too plain to be misunderstood, proceeded to decide it, and announced, as the opinion of the tribunal, that in organizing the judicial department of the Government in a Territory of the United States, Congress does not act under, and is not restricted by, the third article in the Constitution, and is not bound, in a Territory, to ordain and establish courts in which the judges hold their offices during good behaviour, but may exercise the discretionary power which a State exercises in establishing its judicial department, and regulating the jurisdiction of its courts, and may authorize the Territorial Government to establish, or may itself establish, courts in which the judges hold their offices for a term of years only; and may vest in them judicial power upon subjects confided to the judiciary of the United States. And in doing this, Congress undoubtedly exercises the combined power of the General and a State Government. It exercises the discretionary power of a State Government in authorizing the establishment of a court in which the judges hold their appointments for a term of years only, and not during good behaviour; and it exercises the power of the General Government in investing that court with admiralty jurisdiction, over which the General Government had exclusive jurisdiction in the Territory.

No one, we presume, will question the correctness of that opinion; nor is there any thing in conflict with it in the opinion now given. The point decided in the case cited has no relation to the question now before the court. That depended on the construction of the third article of the Constitution, in relation to the judiciary of the United States, and the power which Congress might exercise in a Territory in organizing the judicial department of the Government. The case before us depends upon other and different provisions of the Constitution, altogether separate and apart from the one above mentioned. The question as to what courts Congress may ordain or establish in a Territory to administer laws which the Constitution authorizes it to pass, and what laws it is or is not authorized by the Constitution to pass, are widely different—are regulated by different and separate articles of the Constitution, and stand upon different principles. And we are satisfied that no one who reads attentively the page in Peters' Reports to which we have referred, can suppose that the attention of the court was drawn for a moment to the question now before this court, or that it meant in that case to say that Congress had a right to prohibit a citizen of the United States from taking any property which he lawfully held into a Territory of the United States.

This brings us to examine by what provision of the Constitution the present Federal Government, under its delegated and restricted powers, is authorized to acquire territory outside of the original limits of the United States, and what powers it may exercise therein over the person or property of a citizen of the United States, while it remains a Territory, and until it shall be admitted as one of the States of the Union.

There is certainly no power given by the Constitution to the Federal Government to establish or maintain colonies bordering on the United States or at a distance, to be ruled and governed at its own pleasure; nor to enlarge its territorial limits in any way, except by the admission of new States. That power is plainly given; and if a new State is admitted, it needs no further legislation from Congress, because the Constitution itself defines the relative rights and powers, and duties of the State, and the citizens of the State, and the Federal Government. But no power is given to acquire a Territory to be held and governed permanently in that character.

And indeed the power exercised by Congress to acquire territory and establish a Government there, according to its own unlimited discretion, was viewed with great jealousy by the leading statesmen of the day. And in the Federalist, (No. 38,) written by Mr. Madison, he speaks of the acquisition of the Northwestern Territory by the confederated States, by the cession from Virginia, and the establishment of a Government there, as an exercise of power not warranted by the Articles of Confederation, and dangerous to the liberties of the people. And he urges the adoption of the Constitution as a security and safeguard against such an exercise of power.

We do not mean, however, to question the power of Congress in this respect. The power to expand the territory of the United States by the admission of new States is plainly given; and in the construction of this power by all the departments of the Government, it has been held to authorize the acquisition of territory, not fit for admission at the time, but to be admitted as soon as its population and situation would entitle it to admission. It is acquired to become a State, and not to be held as a colony and governed by Congress with absolute authority; and as the propriety of admitting a new State is committed to the sound discretion of Congress, the power to acquire territory for that purpose, to be held by the United States until it is in a suitable condition to become a State upon an equal footing with the other States, must rest upon the same discretion. It is a question for the political department of the Government, and not the judicial; and whatever the political department of the Government shall recognize as within the limits of the United States, the judicial department is also bound to recognize, and to administer in it the laws of the United States, so far as they apply, and to maintain in the Territory the authority and rights of the Government, and also the personal rights and rights of property of individual citizens, as secured by the Constitution. All we mean to say on this point is, that, as there is no express regulation in the Constitution defining the power which the General Government may exercise over the person or property of a citizen in a Territory thus acquired, the court must necessarily look to the provisions and principles of the Constitution, and its distribution of powers, for the rules and principles by which its decision must be governed.

Taking this rule to guide us, it may be safely assumed that citizens of the United States who migrate to a Territory belonging to the people of the United States, cannot be ruled as mere colonists, dependent upon the will of the General Government, and to be governed by any laws it may think proper to impose. The principle upon which our Government rests, and upon which alone they continue to exist, is the union of States, sovereign and independent within their own limits in their internal and domestic concerns, and bound together as one people by a General Government, possessing certain enumerated and restricted powers, delegated to it by the people of the several States, and exercising supreme authority within the scope of the powers granted to it, throughout the dominion of the United States. A power, therefore, in the General Government to obtain and hold colonies and dependent territories, over which they might legislate without restriction, would be inconsistent with its own existence in its present form. Whatever it acquires, it acquires for the benefit of the people of the several States who created it. It is their trustee acting for them, and charged with the duty of promoting the interests of the whole people of the whole Union in the exercise of the powers specifically granted.

At the time when the Territory in question was obtained by cession from France, it contained no population fit to be associated together and admitted as a State; and it therefore was absolutely necessary to hold possession of it, as a Territory belonging to the United States, until it was settled and inhabited by a civilized community capable of self-government, and in a condition to be admitted on equal terms with the other States as a member of the Union. But, as we have before said, it was acquired by the General Government, as the representative and trustee of the people of the United States, and it must therefore be held in that character for their common and equal benefit; for it was the people of the several States, acting through their agent and representative, the Federal Government, who in fact acquired the Territory in question, and the Government holds it for their common use until it shall be associated with the other States as a member of the Union.

But until that time arrives, it is undoubtedly necessary that some Government should be established in order to organize society, and to protect the inhabitants in their persons and property; and as the people of the United States could act in this matter only through the Government which represented them, and through which they spoke and acted when the Territory was obtained, it was not only within the scope of its powers, but it was its duty to pass such laws and establish such a Government as would enable those by whose authority they acted to reap the advantages anticipated from its acquisition, and to gather there a population which would enable it to assume the position to which it was destined among the States of the Union. The power to acquire necessarily carries with it the power to preserve and apply to the purposes for which it was acquired. The form of government to be established necessarily rested in the discretion of Congress. It was their duty to establish the one that would be best suited for the protection and security of the citizens of the United States, and other inhabitants who might be authorized to take up their abode there, and that must always depend upon the existing condition of the Territory, as to the number and character of its inhabitants, and their situation in the Territory. In some cases a Government, consisting of persons appointed by the Federal Government, would best subserve the interests of the Territory, when the inhabitants were few and scattered, and new to one another. In other instances, it would be more advisable to commit the powers of self-government to the people who had settled in the Territory, as being the most competent to determine what was best for their own interests. But some form of civil authority would be absolutely necessary to organize and preserve civilized society, and prepare it to become a State; and what is the best form must always depend on the condition of the territory at the time, and the choice of the mode must depend upon the exercise of a discretionary power by Congress, acting within the scope of its constitutional authority, and not infringing upon the rights of person or rights of property of the citizen who might go there to reside, or for any other lawful purpose. It was acquired by the exercise of this discretion, and it must be held and governed in like manner, until it is fitted to be a State.

But the power of Congress over the person or property of a citizen can never be a mere discretionary power under our Constitution and form of Government. The powers of the Government and the rights and privileges of the citizen are regulated and plainly defined by the Constitution itself. And when the Territory becomes a part of the United States, the Federal Government enters into possession in the character impressed upon it by those who created it. It enters upon it with its powers over the citizen strictly defined, and limited by the Constitution, from which it derives its own existence, and by virtue of which alone it continues to exist and act as a Government and sovereignty. It has no power of any kind beyond it; and it cannot, when it enters a Territory of the United States, put off its character, and assume discretionary or despotic powers which the Constitution has denied to it. It cannot create for itself a new character separated from the citizens of the United States, and the duties it owes them under the provisions of the Constitution. The Territory being a part of the United States, the Government and the citizen both enter it under the authority of the Constiution, with their respective rights defined and marked out; and the Federal Government can exercise no power over his person or property, beyond what that instrument confers, nor lawfully deny any right which it has reserved.

A reference to a few of the provisions of the Constitution will illustrate this proposition.

For example, no one, we presume, will contend that Congress can make any law in a Territory respecting the establishment of religion, or the free exercise thereof, or abridging the freedom of speech or of the press, or the right of the people of the Territory peacably to assemble, and to petition the Government for the redress of grievances.

Nor can Congress deny to the people the right to keep and bear arms, nor the right to trial by jury, nor compel any one to be a witness against himself in a criminal proceeding.

These powers, and others, in relation to rights of person, which it is not necessary here to enumerate, are, in express and positive terms, denied to the General Government; and the rights of private property have been guarded with equal care. Thus the rights of property are united with the rights of person, and placed on the same ground by the fifth amendment to the Constitution, which provides that no person shall be deprived of life, liberty, and property, without due process of law. And an act of Congress which deprives a citizen of the United States of his liberty or property, merely because he came himself or brought his property into a particular Territory of the United States, and who had committed no offense against the laws, could hardly be dignified with the name of due process of law.

So, too, it will hardly be contended that Congress could by law quarter a soldier in a house in a Territory without the consent of the owner, in time of peace; nor in time of war, but in a manner prescribed by law. Nor could they by law forfeit the property of a citizen in a Territory who was convicted of treason, for a longer period than the life of the person convicted; nor take private property for public use without just compensation.

The powers over person and property of which we speak are not only not granted to Congress, but are in express terms denied, and they are forbidden to exercise them. And this prohibition is not confined to the States, but the words are general, and extend to the whole territory over which the Constitution gives it power to legislate, including those portions of it remaining under Territorial Government, as well as that covered by States. It is a total absence of power everywhere within the dominion of the United States, and places the citizens of a Territory, so far as these rights are concerned, on the same footing with citizens of the States, and guards them as firmly and plainly against any inroads which the General Government might attempt, under the plea of implied or incidental powers. And if Congress itself cannot do this—if it is beyond the powers conferred on the Federal Government—it will be admitted, we presume, that it could not authorize a Territorial Government to exercise them. It could confer no power on any local Government, established by its authority, to violate the provisions of the Constitution.

It seems, however, to be supposed, that there is a difference between property in a slave and other property, and that different rules may be applied to it in expounding the Constitution of the United States. And the laws and usages of nations, and the writings of eminent jurists upon the relation of master and slave and their mutual rights and duties, and the powers which Governments may exercise over it, have been dwelt upon in the argument.

But in considering the question before us, it must be borne in mind that there is no law of nations standing between the people of the United States and their Government, and interfering with their relation to each other. The powers of the Government, and the rights of the citizen under it, are positive and practical regulations plainly written down. The people of the United States have delegated to it certain enumerated powers, and forbidden it to exercise others. It has no power over the person or property of a citizen but what the citizens of the United States have granted. And no laws or usages of other nations, or reasoning of statesmen or jurists upon the relations of master and slave, can enlarge the powers of the Government, or take from the citizens the rights they have reserved. And if the Constitution recognizes the right of property of the master in a slave, and makes no distinction between that description of property and other property owned by a citizen, no tribunal, acting under the authority of the United States, whether it be legislative, executive, or judicial, has a right to draw such a distinction, or deny to it the benefit of the provisions and guarantees which have been provided for the protection of private property against the encroachments of the Government.

Now, as we have already said in an earlier part of this opinion, upon a different point, the right of property in a slave is distinctly and expressly affirmed in the Constitution. The right to traffic in it, like an ordinary article of merchandise and property, was guaranteed to the citizens of the United States, in every State that might desire it, for twenty years. And the Government in express terms is pledged to protect it in all future time, if the slave escapes from his owner. This is done in plain words—too plain to be misunderstood. And no word can be found in the Constitution which gives Congress a greater power over slave-property, or which entitles property of that kind to less protection than property of any other description. The only power conferred is the power coupled with the duty of guarding and protecting the owner in his rights.

Upon these considerations, it is the opinion of the court that the act of Congress which prohibited a citizen from holding and owning property of this kind in the territory of the United States north of the line therein mentioned, is not warranted by the Constitution, and is therefore void; and that neither Dred Scott himself, nor any of his family, were made free by being carried into this territory; even if they had been carried there by the owner, with the intention of becoming a permanent resident.

We have so far examined the case, as it stands under the Constitution of the United States, and the powers thereby delegated to the Federal Government.

But there is another point in the case which depends on State power and State law. And it is contended, on the part of the plaintiff, that he is made free by being taken to Rock Island, in the State of Illinois, independently of his residence in the territory of the United States; and being so made free, he was not again reduced to a state of slavery by being brought back to Missouri.

Our notice of this part of the case will be very brief; for the principle on which it depends was decided in this court, upon much consideration in the case of Strader et al. v. Graham, reported in 10th Howard, 82. In that case, the slaves had been taken from Kentucky to Ohio, with the consent of the owner, and afterward brought back to Kentucky. And this court held that their status or condition, as free or slave, depended upon the laws of Kentucky, when they were brought back into that State, and not of Ohio; and that this court had no jurisdiction to revise the judgment of a State court upon its own laws. This was the point directly before the court, and the decision that this court had not jurisdiction turned upon it, as will be seen by the report of the case.

So in this case. As Scott was a slave when taken into the State of Illinois by his owner, and was there held as such, and brought back in that character, his status, as free or slave, depended on the laws of Missouri, and not of Illinois.

It has, however, been urged in the argument, that by the laws of Missouri he was free on his return, and that this case, therefore, can not be governed by the case of Strader et al. v. Graham, where it appeared, by the laws of Kentucky, that the plaintiffs continued to be slaves on their return from Ohio. But whatever doubts or opinions may, at one time, have been entertained upon this subject, we are satisfied, upon a careful examination of all the cases decided in the State courts of Missouri referred to, that it is now firmly settled by the decisions of the highest court in the State, that Scott and his family upon their return were not free, but were, by the laws of Missouri, the property of the defendant; and that the Circuit Court of the United States had no jurisdiction, when, by the laws of the State, the plaintiff was a slave, and not a citizen.

Moreover, the plaintiff, it appears, brought a similar action against the defendant in the State Court of Missouri, claiming the freedom of himself and his family upon the same grounds and the same evidence upon which he relies in the case before the court. The case was carried before the Supreme Court of the State; was fully argued there; and that court decided that neither the plaintiff nor his family were entitled to freedom, and were still the slaves of the defendant; and reversed the judgment of the inferior State court, which had given a different decision. If the plaintiff supposed that this judgment of the Supreme Court of the State was erroneous, and that this court had jurisdiction to revise and reverse it, the only mode by which he could legally bring it before this court was by writ of error directed to the Supreme Court of the State, requiring it to transmit the record to this court. If this had been done, it is too plain for argument that the writ must have been dismissed for want of jurisdiction in this court. The case of Strader and others v. Graham is directly in point; and, indeed, independent of any decision, the language of the 25th section of the act of 1789 is too clear and precise to admit of controversy.

But the plaintiff did not pursue the mode prescribed by law for bringing the judgment of a State court before this court for revision, but suffered the case to be remanded to the inferior State court, where it is still continued, and is, by agreement of parties, to await the judgment of this court on the point. All of this appears on the record before us, and by the printed report of the case.

And while the case is yet open and pending in the inferior State court, the plaintiff goes into the Circuit Court of the United States, upon the same case and the same evidence, and against the same party, and proceeds to judgment, and then brings here the same case from the Circuit Court, which the law would not have permitted him to bring directly from the State court. And if this court takes jurisdiction in this form, the result, so far as the rights of the respective parties are concerned, is in every respect substantially the same as if it had in open violation of law entertained jurisdiction over the judgment of the State court upon a writ of error, and revised and reversed its judgment upon the ground that its opinion upon the question of law was erroneous. It would ill become this court to sanction such an attempt to evade the law, or to exercise an appellate power in this circuitous way, which it is forbidden to exercise in the direct and regular and invariable forms of judicial proceedings.

Upon the whole, therefore, it is the judgment of this court, that it appears by the record before us that the plaintiff in error is not a citizen of Missouri, in the sense in which that word is used in the Constitution; and that the Circuit Court of the United States, for that reason, had no jurisdiction in the case, and could give no judgment in it. Its judgment for the defendant must, consequently, be reversed, and a mandate issued, directing the suit to be dismissed for want of jurisdiction



POINTS DECIDED.

I.

1. Upon a writ of error to a Circuit Court of the United States, the transcript of the record of all the proceedings in the case is brought before this court, and is open to its inspection and revision.

2. When a plea to the jurisdiction, in abatement, is overruled by the court upon demurrer, and the defendant pleads in bar, and upon these pleas the final judgment of the court is in his favor—if the plaintiff brings a writ of error, the judgment of the court upon the plea in abatement is before this court, although it was in favor of the plaintiff—and if the court erred in overruling it, the judgment must be reversed, and a mandate issued to the Circuit Court to dismiss the case for want of jurisdiction.

3. In the Circuit Courts of the United States, the record must show that the case is one in which by the Constitution and laws of the United States, the court had jurisdiction—and if this does not appear, and the court gives judgment either for plaintiff or defendant, it is error, and the judgment must be reversed by this court—and the parties cannot by consent waive the objection to the jurisdiction of the Circuit Court.

4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States.

5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its "people or citizens." Consequently, the special rights and immunities guaranteed to citizens do not apply to them. And not being "citizens" within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

6. The only two clauses in the Constitution which point to this race, treat them as persons whom it was morally lawful to deal in as articles of property and to hold as slaves.

7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.

8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens, as to all the rights and privileges enjoyed by them within its dominion, and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.

9. The change in public opinion and feeling in relation to the African race, which has taken place since the adoption of the Constitution, cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.

10. The plaintiff having admitted, by his demurrer to the plea in abatement, that his ancestors were imported from Africa and sold as slaves, he is not a citizen of the State of Missouri according to the Constitution of the United States, and was not entitled to sue in that character in the Circuit Court.

11. This being the case, the judgment of the court below, in favor of the plaintiff on the plea in abatement, was erroneous.

II.

1. But if the plea in abatement is not brought up by this writ of error, the objection to the citizenship of the plaintiff is still apparent on the record, as he himself, in making out his case, states that he is of African descent, was born a slave, and claims that he and his family became entitled to freedom by being taken by their owner to reside in a territory where slavery is prohibited by act of Congress—and that, in addition to this claim, he himself became entitled to freedom by being taken to Rock Island, in the State of Illinois—and being free when he was brought back to Missouri, he was by the laws of that State a citizen.

2. If, therefore, the facts he states do not give him or his family a right to freedom, the plaintiff is still a slave, and not entitled to sue as a "citizen," and the judgment of the Circuit Court was erroneous on that ground also, without any reference to the plea in abatement.

3. The Circuit Court can give no judgment for plaintiff or defendant in a case where it has not jurisdiction, no matter whether there be a plea in abatement or not. And unless it appears upon the face of the record, when brought here by writ of error, that the Circuit Court had jurisdiction, the judgment must be reversed.

The case of Capron v. Van Noorden (2 Cranch, 126) examined, and the principles thereby decided, reaffirmed.

4. When the record, as brought here by writ of error, does not show that the Circuit Court had jurisdiction, this court has jurisdiction to revise and correct the error, like any other error in the court below. It does not and cannot dismiss the case for want of jurisdiction here; for that would leave the erroneous judgment of the court below in full force, and the party injured without remedy. But it must reverse the judgment, and, as in any other case of reversal, send a mandate to the Circuit Court to conform its judgment to the opinion of this court.

5. The difference of the jurisdiction in this court in the cases of writs of error to State courts and to Circuit Courts of the United States, pointed out; and the mistakes made as to the jurisdiction of this court in the latter case, by confounding it with its limited jurisdiction in the former.

6. If the court reverses a judgment upon the ground that it appears by a particular part of the record that the Circuit Court had not jurisdiction, it does not take away the jurisdiction of this court to examine into and correct, by a reversal of the judgment, any other errors, either as to the jurisdiction or any other matter, where it appears from other parts of the record that the Circuit Court had fallen into error. On the contrary, it is the daily and familiar practice of this court to reverse on several grounds, where more than one error appears to have been committed. And the error of a Circuit Court in its jurisdiction stands on the same ground, and is to be treated in the same manner as any other error upon which its judgment is founded.

7. The decision, therefore, that the judgment of the Circuit Court upon the plea in abatement is erroneous, is no reason why the alleged error apparent in the exception should not also be examined, and the judgment reversed on that ground also, if it discloses a want of jurisdiction in the Circuit Court.

It is often the duty of this court, after having decided that a particular decision of the Circuit Court was erroneous, to examine into other alleged errors, and to correct them if they are found to exist. And this has been uniformly done by this court, when the questions are in any degree connected with the controversy, and the silence of the court might create doubts which would lead to further and useless litigation.

III.

1. The facts upon which the plaintiff relies did not give him his freedom, and make him a citizen of Missouri.

2. The clause in the Constitution authorizing Congress to make all needful rules and regulations for the government of the territory and other property of the United States, applies only to territory within the chartered limits of some one of the States when they were colonies of Great Britain, and which was surrendered by the British Government to the old Confederation of the States, in the treaty of peace. It does not apply to territory acquired by the present Federal Government, by treaty or conquest, from a foreign nation.

The case of the American and Ocean Insurance Companies v. Canter (1 Peters, 511) referred to and examined, showing that the decision in this case is not in conflict with that opinion, and that the court did not, in the case referred to, decide upon the construction of the clause of the Constitution above mentioned, because the case before them did not make it necessary to decide the question.

3. The United States, under the present Constitution, cannot acquire territory to be held as a colony, to be governed at its will and pleasure. But it may acquire territory which, at the time, has not a population that fits it to become a State, and may govern it as a Territory until it has a population which, in the judgment of Congress, entitles it to be admitted as a State of the Union.

4. During the time it remains a Territory, Congress may legislate over it within the scope of its constitutional powers in relation to citizens of the United States—and may establish a Territorial Government—and the form of this local Government must be regulated by the discretion of Congress, but with powers not exceeding those which Congress itself, by the Constitution, is authorized to exercise over citizens of the United States, in respect to their rights of persons or rights of property.

IV.

1. The territory thus acquired, is acquired by the people of the United States for their common and equal benefit, through their agent and trustee, the Federal Government. Congress can exercise no power over the rights of person or property of a citizen in the Territory which is prohibited by the Constitution. The Government and the citizen, whenever the Territory is open to settlement, both enter it with their respective rights defined and limited by the Constitution.

2. Congress has no right to prohibit the citizens of any particular State or States from taking up their home there, while it permits citizens of other States to do so. Nor has it a right to give privileges to one class of citizens which it refuses to another. The territory is acquired for their equal and common benefit—and if open to any, it must be open to all upon equal and the same terms.

3. Every citizen has a right to take with him into the Territory any article of property which the Constitution of the United States recognizes as property.

4. The Constitution of the United States recognizes slaves as property, and pledges the Federal Government to protect it. And Congress cannot exercise any more authority over property of that description than it may constitutionally exercise over property of any other kind.

5. The act of Congress, therefore, prohibiting a citizen of the United States from taking with him his slaves when he removes to the Territory in question to reside, is an exercise of authority over private property which is not warranted by the Constitution—and the removal of the plaintiff, by his owner, to that Territory, gave him no title to freedom.

V.

1. The plaintiff himself acquired no title to freedom by being taken, by his owner, to Rock Island, in Illinois, and brought back to Missouri. This court has heretofore decided that the status or condition of a person of African descent depended on the laws of the State in which he resided.

2. It has been settled by the decisions of the highest court in Missouri, that by the laws of that State, a slave does not become entitled to his freedom, where the owner takes him to reside in a State where slavery is not permitted, and afterwards brings him back to Missouri.

Conclusion. It follows that it is apparent upon the record that the court below erred in its judgment on the plea in abatement, and also erred in giving judgment for the defendant, when the exception shows that the plaintiff was not a citizen of the United States. And as the Circuit Court had no jurisdiction, either in the case stated in the plea in abatement, or in the one stated in the exception, its judgment in favor of the defendant is erroneous, and must be reversed.



THE

FUGITIVE SLAVE LAW.

BY

REV. CHARLES HODGE, D.D.

OF NEW JERSEY.



THE FUGITIVE SLAVE LAW.

NOTE.—We have affixed, by way of comment to "the decision of the Supreme Court in the Dred Scott case," the following able paper from the pen of Prof. Hodge. It lucidly explains the source and sanction of Civil Government, and deduces therefrom the duties and responsibilities of the governed.—ED.

* * * * *

Alleged Immorality of the Law answered—Duty of Obedience—Government a Divine Institution—The Warrant of Government is not the consent of the governed—Infidel Doctrines—Deductions from this Doctrine—Decision of the Supreme Court—Objections answered—Conscience and the Law—Duty of Executive Officers—Duty of Private Citizens—Objections answered—Right of Revolution—Summary application of these principles to the Fugitive Slave Law—Conclusion.

THERE is no more obvious duty, at the present time, resting on American Christians, ministers and people, than to endeavor to promote kind feelings between the South and the North. All fierce addresses to the passions, on either side, are fratricidal. It is an offense against the gospel, against our common country, and against God. Every one should endeavor to diffuse right principles, and thus secure right feeling and action, under the blessing of God in every part of the land. If the South has no such grounds of complaint as would justify them before God and the human race, whose trustees in one important sense they are, in dissolving the Union, how is it with the North? Are they justifiable in the violent resistance to the fugitive slave bill, which has been threatened or attempted? This opposition in a great measure has been confined to the abolitionists as a party, and as such they are a small minority of the people. They have never included in their ranks either the controlling intellect or moral feeling at the North. Their fundamental principle is anti-scriptural and therefore irreligious. They assume that slaveholding is sinful. This doctrine is the life of the sect. It has no power over those who reject that principle, and therefore it has not gained ascendency over those whose faith is governed by the word of God.

We have ever maintained that the proper method of opposing this party, and of counteracting its pernicious influence, was to exhibit clearly the falsehood of its one idea, viz: that slaveholding is a sin against God. The discussion has now taken a new turn. It is assumed that the fugitiue slave law of the last Congress, (1850) is unconstitutional, or if not contrary to the Constitution, contrary to the law of God. Under this impression many who have never been regarded as abolitionists, have entered their protest against the law, and some in their haste have inferred from its supposed unconstitutionality or immorality that it ought to be openly resisted. It is obvious that the proper method of dealing with the subject in this new aspect, is to demonstrate that the law in question is according to the Constitution of the land; that it is not inconsistent with the divine law; or, admitting its unconstitutionality or immorality, that the resistance recommended is none the less a sin against God. We do not propose to discuss either of the two former of these propositions. The constitutionality of the law may safely be left in the hands of the constituted authorities. It is enough for us that there is no flagrant and manifest inconsistency between the law and the constitution; that the first legal authorities in the land pronounce them perfectly consistent; and that there is no difference in principle between the present law and that of 1793 on the same subject, in which the whole country has acquiesced for more than half a century. We would also say that after having read some of the most labored disquisitions designed to prove that the fugitive slave bill subverts the fundamental principles of our federal compact, we have been unable to discover the least force in the arguments adduced.

As to the immorality of the law, so far as we can discover, the whole stress of the argument in the affirmative rests on two assumptions. First, that the law of God in Deuteronomy, expressly forbids the restoration of a fugitive slave to his owner; and secondly, that slavery itself being sinful, it must be wrong to enforce the claims of the master to the service of the slave. As to the former of these assumptions, we would simply remark, that the venerable Prof. Stuart in his recent work, "Conscience and the Constitution," has clearly proved that the law in Deuteronomy has no application to the present case. The thing there forbidden is the restoration of a slave who had fled from a heathen master and taken refuge among the worshipers of the true God. Such a man was not to be forced back into heathenism. This is the obvious meaning and spirit of the command. That it has no reference to slaves who had escaped from Hebrew masters, and fled from one tribe or city to another, is plain from the simple fact that the Hebrew laws recognized slavery. It would be a perfect contradiction if the law authorized the purchase and holding of slaves, and yet forbid the enforcing the right of possession. There could be no such thing as slavery, in such a land as Palestine, if the slave could recover his liberty by simply moving from one tribe to another over an imaginary line, or even from the house of his master to that of his next neighbor. Besides, how inconsistent is it in the abolitionists in one breath to maintain that the laws of Moses did not recognize slavery, and in the next, that the laws about the restoration of slaves referred to the slaves of Hebrew masters. According to their doctrine, there could be among the Israelites no slaves to restore. They must admit either that the law of God allowed the Hebrews to hold slaves, and then there is an end to their arguments against the sinfulness of slaveholding; or acknowledge that the law representing the restoration of slaves referred only to fugitives from the heathen, and then there is an end to their argument from this enactment against the law under consideration.

The way in which abolitionists treat the Scriptures makes it evident that the command in Deuteronomy is urged not so much out of regard to the authority of the word of God, as an argumentum ad hominem. Wherever the Scriptures either in the Old or New Testament recognize the lawfulness of holding slaves, they are tortured without mercy to force from them a different response; and where, as in this case, they appear to favor the other side of the question, abolitionists quote them rather to silence those who make them the rule of their faith, than as the ground of their own convictions. Were there no such law as that in Deuteronomy in existence, or were there a plain injunction to restore a fugitive from service to his Hebrew master, it is plain from their principles that they would none the less fiercely condemn the law under consideration. Their opposition is not founded on the scriptural command. It rests on the assumption that the master's claim is iniquitous and ought not to be enforced.[258] Their objections are not to the mode of delivery, but to the delivery itself. Why else quote the law in Deuteronomy, which apparently forbids such surrender of the fugitive to his master? It is clear that no effective enactment could be framed on this subject which would not meet with the same opposition. We are convinced, by reading the discussions on this subject, that the immorality attributed to the fugitive slave law resolves itself into the assumed immorality of slaveholding. No man would object to restoring an apprentice to his master; and no one would quote Scripture or search for arguments to prove it sinful to restore a fugitive slave, if he believed slaveholding to be lawful in the sight of God. This being the case, we feel satisfied that the mass of people at the North, whose conscience and action are ultimately determined by the teachings of the Bible, will soon settle down into the conviction that the law in question is not in conflict with the law of God.

But suppose the reverse to be the fact; suppose it clearly made out that the law passed by Congress in reference to fugitive slaves is contrary to the Constitution or to the law of God, what is to be done? What is the duty of the people under such circumstances? The answers given to this question are very different, and some of them so portentous that the public mind has been aroused and directed to the consideration of the nature of civil government and of the grounds and limits of the obedience due to the laws of the land. As this is a subject not merely of general interest at this time, but of permanent importance, we purpose to devote to its discussion the few following pages.

Our design is to state in few words in what sense government is a divine institution, and to draw from that doctrine the principles which must determine the nature and limits of the obedience which is due the laws of the land.

That the Bible, when it asserts that all power is of God, or the powers that be are ordained of God, does not teach that any one form of civil government has been divinely appointed as universally obligatory, is plain because the Scriptures contain no such prescription. There are no directions given as to the form which civil governments shall assume. All the divine commands on this subject, are as applicable under one form as another. The direction is general; obey the powers that be. The propsition is unlimited; all power is of God; i. e., government, whatever its form, is of God. He has ordained it. The most pointed scriptural injunctions on this subject were given during the usurped or tyrannical reign of military despots. It is plain that the sacred writers did not, in such passages, mean to teach that a military despotism was the form of government which God had ordained as of perpetual and universal obligation. As the Bible enjoins no one form, so the people of God in all ages, under the guidance of his Spirit, have lived with a good conscience, under all the diversities of organization of which human government is susceptible.

Again, as no one form of government is prescribed, so neither has God determined preceptively who are to exercise civil power. He has not said that such power must be hereditary, and descend on the principle of primogeniture. He has not determined whether it shall be confined to males to the exclusion of females; or whether all offices shall be elective. These are not matters of divine appointment, and are not included in the proposition that all power is of God. Neither is it included in this proposition that government is in such a sense ordained of God that the people have no control in the matter. The doctrine of the Bible is not inconsistent with the right of the people, as we shall endeavor to show in the sequel, to determine their own form of government and to select their own rulers.

When it is said government is of God, we understand the Scriptures to mean, first, that it is a divine institution and not a mere social compact. It does not belong to the category of voluntary associations such as men form for literary, benevolent, or commercial purposes. It is not optional with men whether government shall exist. It is a divine appointment, in the same sense as marriage and the church are divine institutions. The former of these is not a mere civil contract, nor is the church as a visible spiritual community a mere voluntary society. Men are under obligation to recognize its existence, to join its ranks and submit to its laws. In like manner it is the will of God that civil government should exist. Men are bound by his authority to have civil rulers for the punishment of evil doers, and for the praise of them that do well. This is the scriptural doctrine, as opposed to the deistical theory of a social compact as the ultimate ground of all human governments.

It follows from this view of the subject that obedience to the laws of the land is a religious duty, and that disobedience is of the specific nature of sin; this is a principle of vast importance. It is true that the law of God is so broad that it binds a man to every thing that is right, and forbids every thing that is wrong; and consequently that every violation even of a voluntary engagement is of the nature of an offense against God. Still there is a wide difference between disobedience to an obligation voluntarily assumed, and which has no other sanction than our own engagement, and disregard of an obligation directly imposed of God. St. Peter recognizes this distinction when he said to Annanias, Thou hast not lied unto men but unto God. All lying is sinful, but lying to God is a higher crime than lying to men. There is greater irreverence and contempt of the divine presence and authority, and a violation of an obligation of a higher order. Every man feels that the marriage vows have a sacred character which could not belong to them, if marriage was merely a civil contract. In like manner the divine institution of government elevates it into the sphere of religion, and adds a new and higher sanction to the obligations which it imposes. There is a specific difference, more easily felt than described, between what is religious and what is merely moral; between disobedience to man and resistance to an ordinance of God.

A third point included in the scriptural doctrine on this subject is, that the actual existence of any government creates the obligation of obedience. That is, the obligation does not rest either on the origin or the nature of the government, or on the mode in which it is administered. It may be legitimate or revolutionary, despotic or constitutional, just or unjust, so long as it exists it is to be recognized and obeyed within its proper sphere. The powers that be are ordained of God in such sense that the possession of power is to be referred to his providence. It is not by chance, nor through the uncontrolled agency of men, but by divine ordination that any government exists. The declaration of the apostle just quoted was uttered under the reign of Nero. It is as true of his authority as of that of the Queen of England, or that of our own President, that it was of God. He made Nero Emperor. He required all within the limits of the Roman empire to recognize and obey him so long as he was allowed to occupy the throne. It was not necessary for the early Christians to sit in judgment on the title of every new emperor, whenever the pretorian guards chose to put down one and put up another; neither are God's people now in various parts of the world called upon to discuss the titles and adjudicate the claims of their rulers. The possession of civil power is a providential fact, and is to be regarded as such. This does not imply that God approves of every government which he allows to exist. He permits oppressive rulers to bear sway, just as he permits famine or pestilence to execute his vengeance. A good government is a blessing, a bad government is a judgment; but the one as much as the other is ordained of God, and is to be obeyed not only for fear but also for conscience sake.

A fourth principle involved in the proposition that all power is of God is, that the magistrate is invested with a divine right. He represents God. His authority is derived from Him. There is a sense in which he represents the people and derives from them his power; but in a far higher sense he is the minister of God. To resist him is to resist God, and "they that resist shall receive unto themselves damnation." Thus saith the Scriptures. It need hardly be remarked that this principle relates to the nature, and not to the extent, of the power of the magistrate. It is as true of the lowest as of the highest; of a justice of the peace as of the President of the United States; of a constitutional monarch as of an absolute sovereign. The principle is that the authority of rulers is divine, and not human, in its origin. They exercise the power which belongs to them of divine right. The reader, we trust, will not confound this doctrine with the old doctrine of "the divine right of kings." The two things are as different as day and night. We are not for reviving a defunct theory of civil government; a theory which perished, at least among Anglo-Saxons, at the expulsion of James II. from the throne of England. That monarch took it with him into exile, and it lies entombed with the last of the Stuarts. According to that theory God had established the monarchical form of government as universally obligatory. There could not consistently with his law be any other. The people had no more right to renounce that form of government than the children of a family have to resolve themselves into a democracy. In the second place, it assumed that God had determined the law of succession as well as the form of government. The people could not change the one any more than the other; or any more than children could change their father, or a wife her husband. And thirdly, as a necessary consequence of these principles, it inculcated in all cases the duty of passive obedience. The king holding his office immediately from God, held it entirely independent of the will of the people, and his responsibility was to God alone. He could not forfeit his throne by any injustice however flagrant. The people, if in any case they could not obey, were obliged to submit; resistance or revolution was treason against God. We have already remarked that the scriptural doctrine is opposed to every one of these principles. The Bible does not prescribe any one form of government; it does not determine who shall be depositories of civil power; and it clearly recognizes the right of revolution. In asserting, therefore, the divine right of rulers, we are not asserting any doctrine repudiated by our forefathers, or inconsistent with civil liberty in its widest rational extent.

Such, as we understand it, is the true nature of civil government. It is a divine institution and not a mere voluntary compact. Obedience to the magistrate and laws is a religious duty; and disobedience is a sin against God. This is true of all forms of government. Men living under the Turkish Sultan are bound to recognize his authority, as much as the subjects of a constitutional monarch, or the fellow-citizens of an elective president, are bound to recognize their respective rulers. All power is of God, and the powers that be are ordained of God, in such sense that all magistrates are to be regarded as his ministers, acting in his name and with his authority, each within his legitimate sphere; beyond which he ceases to be a magistrate.

That this is the doctrine of the Scriptures on this subject can hardly be doubted. The Bible never refers to the consent of the governed, the superiority of the rulers, or to the general principles of expediency, as the ground of our obligation to the higher powers. The obedience which slaves owe their masters, children their parents, wives their husbands, people their rulers, is always made to rest on the divine will as its ultimate foundation. It is part of the service which we owe to God. We are required to act, in all these relations, not as men-pleasers, but as the servants of God. All such obedience terminates on our Master who is in heaven. This gives the sublimity of spiritual freedom even to the service of a slave. It is not in the power of man to reduce to bondage those who serve God, in all the service they render their fellow-men. The will of God, therefore, is the foundation of our obligation to obey the laws of the land. His will, however, is not an arbitrary determination; it is the expression of infinite intelligence and love. There is the most perfect agreement between all the precepts of the Bible and the highest dictates of reason. There is no command in the word of God of permanent and universal obligation, which may not be shown to be in accordance with the laws of our own higher nature. This is one of the strongest collateral arguments in favor of the divine origin of the Scriptures. In appealing therefore to the Bible in support of the doctrine here advanced, we are not, on the one hand appealing to an arbitrary standard, a mere statute book, a collection of laws which create the obligations they enforce; nor, on the other hand, to "the reason and nature of things" in the abstract, which after all is only our own reason; but we are appealing to the infinite intelligence of a personal God, whose will, because of his infinite excellence, is necessarily the ultimate ground and rule of all moral obligation. This, however, being the case, whatever the Bible declares to be right is found to be in accordance with the constitution of nature and our own reason. All that the Scriptures, for example, teach of the subordination of children to their parents, of wives to their husbands, has not its foundation, but its confirmation, in the very nature of the relation of the parties. Any violation of the precepts of the Bible, on these points, is found to be a violation of the laws of nature, and certainly destructive. In like manner it is clear from the social nature of man, from the dependence of men upon each other, from the impossibility of attaining the end of our being in this world, otherwise than in society and under an ordered government, that it is the will of God that such society should exist. The design of God in this matter is as plain as in the constitution of the universe. We might as well maintain that the laws of nature are the result of chance, or that marriage and parental authority have no other foundation than human law, as to assert that civil government has no firmer foundation than the will of man or the quicksands of expediency. By creating men social beings, and making it necessary for them to live in society, God has made his will as thus revealed the foundation of all civil government.

This doctrine is but one aspect of the comprehensive doctrine of Theism, a doctrine which teaches the existence of a personal God, a Spirit infinite, eternal, and unchangeable, in his being, wisdom, power, justice, holiness, goodness, and truth; a God who is everywhere present upholding and governing all his creatures and all their actions. The universe is not a machine left to go of itself. God did not at first create matter and impress upon it certain laws and then leave it to their blind operation. He is everywhere present in the material world, not superseding secondary causes, but so upholding and guiding their operations, that the intelligence evinced is the omnipresent intelligence of God, and the power exercised is the potestas ordinata of the Great First Cause. He is no less supreme in his control of intelligent agents. They indeed are free, but not independent. They are governed in a manner consistent with their nature; yet God turns them as the rivers of waters are turned. All events depending on human agency are under his control. God is in history. Neither chance nor blind necessity determine the concatenation or issues of things. Nor is the world in the hands of its inhabitants. God has not launched our globe on the ocean of space and left its multitudinous crew to direct its course without his interference. He is at the helm. His breath fills the sails. His wisdom and power are pledged for the prosperity of the voyage. Nothing happens, even to the falling of a sparrow, which is not ordered by him. He works all things after the counsel of his will. It is by him that kings reign and princes decree justice. He puts down one, and raises up another. As he leads out the stars by night, marshaling them as a host, calling each one by its name, so does he order all human events. He raises up nations and appoints the bounds of their habitation. He founds the empires of the earth and determines their form and their duration. This doctrine of God's universal providence is the foundation of all religion. If this doctrine be not true, we are without God in the world. But if it is true, it involves a vast deal. God is everywhere in nature and in history. Every thing is a revelation of his presence and power. We are always in contact with him. Every thing has a voice, which speaks of his goodness or his wrath; fruitful seasons proclaim his goodness, famine and pestilence declare his displeasure. Nothing is by chance. The existence of any particular form of government is as much his work, as the rising of the sun or falling of the rain. It is something he has ordained for some wise purpose, and it is to be regarded as his work. If all events are under God's control, if it is by him that kings reign, then the actual possession of power is as much a revelation of his will that it should be obeyed, as the possession of wisdom or goodness is a manifestation of his will that those endowed with those gifts, should be reverenced and loved. It follows, therefore, from the universal providence of God, that "the powers that be are ordained of God." We have no more right to refuse obedience to an actually existing government because it is not to our taste, or because we do not approve of its measures, than a child has the right to refuse to recognize a wayward parent; or a wife a capricious husband.

The religious character of our civil duties flows also from the comprehensive doctrine that the will of God is the ground of all moral obligation. To seek that ground either in "the reason and nature of things," or in expediency, is to banish God from the moral world, as effectually as the mechanical theory of the universe banishes him from the physical universe and from history. Our allegiance on that hypothesis is not to God but to reason or to society. This theory of morals therefore, changes the nature of religion and of moral obligation. It modifies and degrades all religious sentiment and exercises; it changes the very nature of sin, of repentance and obedience, and gives us, what is a perfect solecism, a religion without God. According to the Bible, our obligation to obey the laws of the land is not founded on the fact that the good of society requires such obedience, or that it is a dictate of reason, but on the authority of God. It is part of the service which we owe to him. This must be so if the doctrine is true that God is our moral governor, to whom we are responsible for all our acts, and whose will is both the ground and the rule of all our obligations.

We need not, however, dwell longer on this subject. Although it has long been common to look upon civil government as a human institution, and to represent the consent of the governed as the only ground of the obligation of obedience, yet this doctrine is so notoriously of infidel origin, and so obviously in conflict with the teachings of the Bible, that it can have no hold on the convictions of a Christian people. It is no more true of the state than it is of the family, or of the church. All are of divine institution. All have their foundation in his will. The duties belonging to each are enjoined by him and are enforced by his authority. Marriage is indeed a voluntary covenant. The parties select each other, and the state may make laws regulating the mode in which the contract shall be ratified; and determining its civil effects. It is, however, none the less an ordinance of God. The vows it includes are made to God; its sanction is found in his law; and its violation is not a mere breach of contract or disobedience to the civil law, but a sin against God. So with regard to the church, it is in one sense a voluntary society. No man can be forced by other men to join its communion. If done at all it must be done with his own consent, yet every man is under the strongest moral obligation to enter its fold. And when enrolled in the number of its members his obligation to obedience does not rest on his consent; it does not cease should that consent be withdrawn. It rests on the authority of the church as a divine institution. This is an authority no man can throw off. It presses him everywhere and at all times with the weight of a moral obligation. In a sense analogous to this the state is a divine institution. Men are bound to organize themselves into a civil government. Their obligation to obey its laws does not rest upon their compact in this case, any more than in the others above referred to. It is enjoined by God. It is a religious duty, and disobedience is a direct offense against him. The people have indeed the right to determine the form of the government under which they are to live, and to modify it from time to time to suit their changing condition. So, though to a less extent, or within narrower limits, they have a right to modify the form of their ecclesiastical governments, a right which every church has exercised, but the ground and nature of the obligation to obedience remains unchanged. This is not a matter of mere theory. It is of primary practical importance and has an all-pervading influence on national character. Every thing indeed connected with this subject depends on the answer to the question, Why are we obliged to obey the laws? If we answer because we made them; or because we assent to them, or framed the government which enacts them; or because the good of society enjoins obedience, or reason dictates it, then the state is a human institution; it has no religious sanction; it is founded on the sand; it ceases to have a hold on the conscience and to commend itself as a revelation of God to be reverenced and obeyed as a manifestation of his presence and will. But, on the other hand, if we place the state in the same category with the family and the church, and regard it as an institution of God, then we elevate it into a higher sphere; we invest it with religious sanctions and it become pervaded by a divine presence and authority, which immeasurably strengthens, while it elevates its power. Obedience for conscience' sake is as different from obedience from fear, or from voluntary consent, or regard to human authority, as the divine from the human.