rial people are "perfectly free," and yet. "subject" at the same time, must be seen by himself, on cool, reflection, to be one of the instances in which he is himself, as he says (p. 527) others are often, deceived by names "in respect to the nature and substance of things." He does not specify to what extent they are subject. It may be that he would, on inquiry, admit that they are not free to incorporate into their constitution, any aristocratic or monarchical innovations; and if so, how will he show that they are kept back from such interpolations into our republican system, and not equally kept back from others no less invasive of, and in conflict with, other principles, on which the Federal Constitution was established, and in which its essential character of republican liberty consists. "Popular sovereignty," in the name of it, is so captivating, that in contemplating its abstract beauties, he has failed to see that its natural displays are veiled, though not disfigured or damaged, by the federal authority which surrounds it, and to which he himself says it is "subordinate." It is needless to define these words. It is well enough understood that "subject," "subordinate," "consistent," are words, all which he uses in the same relation, that import some amount of dissent from the idea of subjection to the Constitution of the United States, to which he confesses. How those expressions can be used and not be intended to impart some restriction, it would be curious and startling to discover, unless they are employed, which would be startling, indeed, for some purpose of deception, which it would be painful to suppose is the purpose.

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Observe it is not to their external relations, that the author of the essay declares (p. 529), that the people of the territories are subject." He here specifies that he refers to "their domestic institutions"-their internal policy, in forming which he claims "they are perfectly free" to form them as they please, "subject only" (and, therefore, that they are subject) "to the Constitution of the United States."

As already stated, if he does not intend to deceive, which is not supposable, he does intend to admit that the territorial people are so subject to some extent in the formation and regulation of their internal polity. Their "polity," their "policy," their "domestic institutions," or whatever other term or terms appropriate, internal subjects of legislation may be designated by, excluding their external relations, can only have relation to persons or property.

First, of persons. Are the people of a territory, organized by act of Congress, "perfectly free" to be governed alone by

the uncontrollable will of the majority, to be ascertained, if the majority say so, by agents appointed by that majority in legislative conclave or conventional council, to wait on every voter, on any given subject, at his own house, and not to receive his vote, the vote of any one, elsewhere than at his house, with whatever delay, and at whatever cost to the government, which the people withal are to be taxed to pay? This would be perfect freedom, but not much like any constitutional liberty which we enjoy. Ten thousand governmental transactions might be supposed, displaying like perfect freedom of legislation, and no less inconsistent with our ideas of republican liberty, and in which the majority might indulge in respect to persons and their civil and political immunities, if the people of a territory or a new State were not subject to the Constitution of the United States, or some other power to which they must be subordinate and act consistently with. Or, can a territorial people, in legislative or conventional assembly, by the will of the majority in that body, expressly clothed with the authority to do this by their constituents, subject offenders to excessive bail or unusual and cruel punishments, or to trial for offences when not confronted with their accusers or witnesses? This would be "perfect freedom" in the majority to do as they please, in respect to persons, and in those particulars. And why may not any of those things, and ten thousand others no less inconsistent with our ideas of republican liberty, be done in respect to persons at the instigation of the will of a majority perfectly free "to form and regulate their domestic institutions" or polity "in their own way"? In our system, it is only because they are "subject to the Constitution of the United States," which guarantees republican forms of government to every territory or new State "throughout the dominion of the United States."

Second, of properly. Can a territorial people, brought under the dominion of the United States, by an act of Congress organizing them, subject any inhabitant's goods or houses to seizure or search, at the pleasure of the majority regularly ascertained, or require one man to give his horse for another's mule, or his wagon and team for another's slave, or all, or only the rich of fifty thousands' worth of merchandise, to contribute, monthly, one per cent. to the support of an established church? They might, "if perfectly free to form and regulate their domestic institutions in their own way." Fortunately, we think, they are not perfectly free, but "subject to the Constitution of the United States;" or, as the late resolutions of the

democracy of Massachusetts say, "under general principles of the Constitution."

Now, as to property, with which it is well enough known, in this utilitarian age, persons are very closely identified, why, in the nature and substance of things (as well as not those things referred to), is it that some other things may not be done?

First. What are some of those other things that may not be done by any people under the dominion of the United States, with "perfect freedom in forming their domestic institutions"? The one pertinent thing is not to deprive any person of his property, except by due process of law or for public use. If the territorial people are "perfectly free" to form their domestic institutions in their own way, as to property, after a pattern fashioned by the will of the majority in legislative or conventional council acting, then they may deprive any inhabitant of his slaves, or other property, for any other than the specified purposes, or either of them."

Secondly. Why not? In our system, alone, because such a people is subject to the Constitution of the United States. Not so fast, they tell me; for the Attorney-General of the United States says it is "universally agreed" that those provisions, that the citizen shall only be deprived of his property by due process of law, or for public use, only restrain the general government. He breaks the force of the interjected objection himself. In his next sentence he says: but we "are also protected against the State governments by similar provisions in the State constitutions." Nor is that all, nor the most of it, why the territorial people, in forming their institutions, in making their constitution to be a State, as soon as they are admitted as such, are not "perfectly free" to deprive any person of property belonging to him, except by due process of law, or for public use. The provisions, whether in the Federal Constitution or in the State constitutions, are only occasional expressions, very appropriately, of a fundamental principlean indispensable postulate of civil liberty, as certainly as property is identified with persons in social happiness. It is the principle my doctrine claims. It is a principle which violence to property only can efface. It is a principle which despotism, alone, can disregard. The doctrine that it is the duty of the federal legislature to intervene in admitting a State, for the protection of property, which implies that it is intended to be injuriously interfered with, only asks that the citizens of the proposed new State in the Union, shall have the ke protection

of their property by constitutional provisions similar to those in "the constitutions of the other States," which, in the strength of the principle those provisions express, ought to be in all, no less in those to come into the Union, than in every other one by whose united authority others are to be admitted. Let us have all the members concurrent with the federal head in so protecting property to persons who own it, that no one shall be divested, except by due process of law, or for the public use. That is all. Less than that is not enough. And it is the general government which the doctrine asks shall have that enough secured-and, by its legislative arm, to its full length. But, stop, says the distinguished author, the idea is a fallacy. "Congress may institute governments for the territories," and yet has no right to exercise any one class, or any one, of their powers. I beg to say, and it is no mere verbal criticism, that Congress can do no such thing-the federal legislature may institute territorial governments, but Congress by itself cannot. The President has a function to fill in doing the business. The federal legislature (he intends) has no power to restrain the temporary government which it has instituted. In the first place, it may be replied that the federal legislature, in organizing "the Territory of Orleans," did exercise all the power in respect to negro-slaves, which, it is claimed, ought, in every case, to be exercised by the same authority. It will scarcely be contended that a power may be exercised in instituting, which may not be, in superintending "a temporary government." That pretension would be aside. of the question. The question is, has the federal power any authority to interpose in this behalf? The Senator says no: because every power conferred on Congress, must be exercised by Congress alone. It would be a waste of time to show that Congress, more than any other co-ordinate branch of the federal powers, may and must act by agents. It would be a waste of time to show that very many of the acts of its rightful authority, though such acts can be only initiated by itself, yet, without agents, cannot be carried into effect. "To declare war" is its only power, which it can execute without the help of agents. It is only the inference which the Senator evidently would have (and has ingeniously left to be) deduced from this part of his exposition, that needs to be antagonized for refutation. He seeks to have the reader infer that his (on p. 520) enumerated grants of power, are all the important powers granted to Congress, although he says "the list might be extended." For, surely, if he had stated that Congress has

all the powers which any government can have, "necessary and proper for carrying into effect the granted powers," his readers could not fail to see that the federal legislature, admittedly, having the power to "institute governments for the territories," has also the incidental power to have such governments rightly carried into effect. Then, we come back to the principal consideration, that it is the duty of Congress at any time, and at all times, to require that the great principle of the protection of property, which is expressed in the Federal Constitution, and the constitutions of the States in the Union, shall be also expressed in the constitution of every State yet to come into the republican family.

(Since writing the above, I have read the 5th No. of the National Intelligencer, on "the territorial question." I do not know that they are done, but they speak of this 5th as the last of this series. They commend the policy our fathers pursued, of exercising "the power according to the proprieties of time and place." But it must be noticed, and measured and weighed, that most of the legislation of our fathers, was during the existence of the "Missouri restriction." It must be remembered that that restriction was imposed where the extent of territory it disallowed "involuntary servitude" in, was, "as yet, unsettled." That restriction is removed. The question is, as to territory inhabited by white men owning negroes-as to Kansas, New-Mexico, the four States to be carved out of Texas-and not least, now that restriction is rescinded, as to the propriety and respectability of owning negroes in the States as a property; and, indeed, the question reaches to the right uninterfered with by "popular sovereignty," to hold slaves in the States. It is enough to say of the Intelligencer's view, that it invites back to an exploded policy. We want light on the pathway we are now walking in and jostling.)

The essay contains intimations, that though slavery, regarded only as a property, might be entitled to the intervention of the federal legislature to protect it, yet, as an institution, it is within the absolute control of the territorial people, when forming their constitution for admission as a State, to expel it-not to "confiscate" it-but to provide that as an institution or as a property, it shall cease to exist in the new State, on such terms as may be prescribed by the legislative authority, but with compensation to the owners, nevertheless. This view hinges on the word "institution." Let it be first defined. It is not necessary to look into the meaning of the word in all its uses. Its meaning, in this use of it, is enough; that