Chapter LVII: Appendix (5)

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.