property. It was the same overruling consideration (for which the mother-country was at fault, as the author of the essay abundantly shows, in the early legislation of Virginia) which constrained the framers of the State constitutions to recognize negroes as slaves. As to the framers of the Federal Constitution, it is shown more clearly than by either of the others, by that clause which reserved to the States the right to import as much more of the same sort of property as any of them might "think proper to admit" before 1808, free from any duty on such importation, "exceeding ten dollars for each person" imported. About this clause of the Constitution, moreover, let it be observed, clusters abundant refutation and repulsion of the theory, that, because slavery exists lawfully in an organized territory, by virtue of the Federal Constitution, it may, therefore, be lawfully introduced into a State. which did not have it when "the more perfect union" was formed, or which is now free from it, having expelled it since. With these observations, relative to incidental considerations. belonging to the general subject, we will return to the prominent error from which the author of the essay seeks to gather strength to his theory of popular sovereignty, and which it is yet intended to answer more radically, having it in mind, however, to be again diverted from the principal idea, in order to bring in incidental views.

The grave thought-grave indeed it would be if there was truth in it-that the principles of the Federal Constitution, which challenge the protection of the slave property where it is, or where it may be carried in virtue of its recognition as such by that Constitution, apply equally to justify its exten sion and introduction as an "institution," in States in which the existence of the property is interdicted by the local law, can only be put forth or espoused for one of two purposes. The one is, as forming a ground to stand on in the future, in an attempt to interfere with slavery in the States. The other is,. to alarm the fears of the free States, and so, now urge them on to do that wrong, as if in self-defence, which is the first enumerated of the two purposes in propagating that thoughtone or the other of which, if, indeed, either can be otherwise,. is inseparable from it; if, indeed, it is not the intention of the originator of the thought to have it fill both purposes.

The provisions of the Federal Constitution which challenge the protection of slave property, as already stated, are, remarkably enough, omitted by the author of the essay, in his otherwise copious citation of its provisions. These omitted provisions as already stated, are, that "no person's" property

shall be taken from him, except "by due process of law," looking to the judicial power which adjudicates the deprivation on account of crime or debt; or else, only for "public use," looking to the legislative and executive authorities, and comprehending only the specific purpose of actually employing the private property taken, with just compensation to the owner (as Chief Justice Taney says, in Avery's case), "in the service" and "for the benefit of the government." Any exercise of control by acts of ownership, over any person's property, by the government, for any other purpose, is among "the forbidden powers" to the federal authority. As has been stated "we are also protected by similar provisions in the State constitutions, against the State governments." The absence of a grant of the power is enough to show that it is a forbidden power. The powers not granted to either State or federal government, are reserved to the people-the rights of property to the individual citizens: for, by the terms, "no person," the citizen has the power of control over his property, secured to himself, except so far, only, as his power has been curtailed by being delegated. The State governments always did, as the federal government does, "act directly" on the individual citizen. The citizen owing obedience, is entitled to protection, unless one or the other of the governments to which he is subject, was expressly intended, or is so rightly interpreted, to act directly on the individual citizens, not beneficially, but destructively: a government, a republic, with capacity to destroy property at will, to strip the owner of his possessions! This would be subversion of our republican system, and would impute to its framers a want of sense enough to found a government, giving protection of property, as well as freedom of person, and as if the one was worth having, in the present constitution of the world, without the right to have and to hold the other!

As by the Federal Constitution the power over private property is reserved to the individual citizens, so also by it the power is reserved to the States, respectively, in their corporate capacities, to interdict the introduction, at any time, of any property not already imported. It is in virtue of this familiar. principle that "the Missouri restriction" was constitutional. If the "restriction" had expelled slavery from Missouri, where the owners had it, and were entitled to "the direct action" of the federal government, protectively, it would have been unconstitutional. But it let slavery alone as it was in Missouri, and interdicted its introduction into a region which was then uninhabited except by Indians and wild beasts. This the

federal government had the power to do, whether as sovereign or trustee of the States. It deprived no person of his property. There was no political community there, the individual members of which had property, with rights reserved to control it absolutely within the range of undelegated authority to interfere with it. It was as to that soil from which the tread of the negro slave was excluded, as it was with the several States before they ratified the Federal Constitution, and invested the government it established with the power of "acting directly on the individual citizens." The one was at perfect liberty to keep off the tread of the slave. The other was as free to refuse to subject its citizens to "the direct action" of another government. The federal government, as to that region which at that time was "as yet unsettled," had the same power which each of the States under that government reserved to itself when it granted to Congress the power to prohibit after 1808, the importation or migration of any more of such persons as slaves as any of the States had theretofore thought proper to admit as such. The States did not thereby part with the power, each for itself, before 1808, to inhibit the importation of negro slaves or the migration of untutored. Africans. They yet have the power, each for itself, to prohibit the introduction of any more of such persons as property, or as citizens, unless the general government has authority to naturalize foreigners of color. This power to keep out-not to let come in-is a very different power from that other of depriving the individual citizens of control over their private property to any extent to which the power of control or deprivation "has not been delegated to the United States by the Constitution," and has been "prohibited by it to the States." That reserved power of the States which no one of them has ever at any time, or for any purpose, or to any extent, parted with, and which is esteemed so valuable as a part of the sovereign power which each State has ever had, and has at this moment, to protect itself against the importation of such persons as slaves, as itself may not "think proper to admit, is of such a character, and so stable in principle, and so familiar in practice, that the free States need not be frightened from their propriety (?) by any fear that it can ever be invaded. or impaired as a "dividing line between federal and local authority," by any desired aggrandizement of a section, or any attempted expansion of slavery.

So that error of the author of the essay, which he educed form another's, idea of "irrepressible conflict" between the

slave and the free States, is radically exposed by stating the provisions of the federal and the State constitutions; on the one hand, showing that the rights of property in the individual citizens are safe in that shield; and by bringing to view and inspection the stable principle familiar in practice, on the other hand, showing the reserved power of the States. In other words (to disentangle the exposure of the error from every other consideration, however pertinent, as it will now be more and very succinctly stated), it is thus shown that slavery does not exist by virtue of the Federal Constitution in the free States, by the mighty power of the FACT that the States have never surrendered the power they severally reserved by that Constitution, to repel (but not to expel) negro slaves-to keep them out of the State, but not to take them from their owners. Nor has the power of the individual owners to keep their slaves "as a possession" where they are recognized by State laws as a property, or elsewhere under the dominion of the government of the United States, where there are as yet no State laws, and where the citizens of all the States (Art. IV., Sec. 2, of Con. U. S.) "shall be entitled" to equal "privileges and immunities," ever been surrendered by the individual citizens to the State governments, nor to the general government, much less to any territorial authority. As the power of the States to keep out "the institution," is reserved by the Federal Constitution to the several States in their corporate capacities, and in that fact their right subsists. to keep slaves out of them, each State for itself, so also the power of the individual owner to hold on to his slaves in kind, is stable in the mightier power of that other FACT, to wit: that the original sovereignty of the States, in virtue of which the rule of the majority had no check on its will-that sovereignty no less of the slave States, than of the free States-"is LIMITED by the Federal Constitution"—limited not only by the particular provisions cited, and by their sempiternal principle demanding in its own strength to be incorporated into the constitution of every new State, as it is in the constitutions of the States already in the Union; but also by the general provision of the Federal Constitution, that itself and all laws in pursuance of it, "shall be the supreme law of the land, anything in it or any laws of any State to the contrary notwithstanding." That is the answer, why, though slavery exists by virtue of the Federal Constitution in a territory, it yet does not exist by virtue of that Constitution, in (and may, notwithstanding its recognitions of slavery, be kept out by) any free

State which at first repelled, or has since (however unconstitutionally) expelled it, and is rid of it, now.

There are several minor considerations in support of the views of the author of the essay, which he presents and urges with his usual ingenuity and power, which would be here brought under review, if it had not already been done by others. The author of the essay concludes that the power to "admit new States" may be fairly construed to include the right to institute temporary governments, &c., but "certainly not to authorize Congress to legislate in respect to their internal concerns," &c. Now, can it be that Congress may legislate only in respect to the territories' external relations? Are not these already sufficiently and fully defined by the Federal Constitution? Can it be that the federal authority can rightfully regulate the foreign or external relations of a "distinct political community," and so transgress the usual dividing-line between a principality and other powers, and, yet, not have power to supervise and regulate the local legislation under that temporary government which the federal authority has the right to (and did) institute? And that, too, when the federal authority is conceded (by him) to have been itself instituted to "act directly upon the individual citizens?" would seem that the federal authority is not any more bound to "enforce its decrees to the extent of its delegated powers," against the individual citizens in their collective capacity, than it is to protect the reserved rights of the individual citizens, whose loyalty to its delegated powers it exacts. For this protection, to which, I conceive, the individual citizens are shown to be entitled as the plain (and the usual) correlative duty of the federal authority. I repeat, they ought not to be put off on a resort to the courts, until the legislative arm of protection has been first extended its full length by the federal legislature.

It

The auther of the essay ranges himself, of course, in the class who contend that the territorial people are "perfectly free" in relation to their domestic institutions, including slavery, to ordain them as they please, but who concede, nevertheless, that in forming and regulating those institutions, such a people is "subject to the Constitution of the United States." Now, it cannot be denied that there is a wide difference-embracing many degrees-between perfect freedom and subjection. The attribute of freedom cannot co-exist with the disability of subjection, unless the latter impair the former. To assert, as the author of the essay does (p. 519), that a territo