# Unconstitutionality of the Fugitive Act/2

AFTERNOON SESSION—2½ P. M.
Having finished what I intended to say upon the objection relating to the judicial power, I return now to the consideration of the first, which is that Congress has no power whatever to legislate concerning the recaption of fugitives from labor. In presenting this, my purpose is first to maintain what I believe to be the true construction of the constitution, fortifying that construction with such authorities as I may be able, and then to examine some of the decisions that have been made in favor of the opposite doctrine. For I am aware that such decisions have been made, and that they are regarded by many as binding and conclusive. But I shall endeavor to show that there are none which deserve to be so regarded; but that, on the contrary, they are so much in conflict with each other, and with clear and well settled principles of construction, that the character of their reasoning is so dangerous and unsatisfactory, and that they give such evidence of having been made without that rigid scrutiny which so great an issue demanded, as to render them unworthy of being regarded as binding authorities by this or any other court. And if I may be allowed to "set forth great things by small," I would say that in this investigation it will be found that the proceedings of the State and general governm'ts, in relation to their respective powers, resemble those of emigrant families who have gone into a new country and settled in the wilderness. Each family devotes its attention at first to such improvements around its immediate household as will enable it to secure the necessities and common conveniences of life. The boundary lines of the farms are not run out perhaps for a long time; and when they are run, are made crooked, turning aside for slight obstacles, so that the land of one owner is often contained in the enclosure of another. Their first enclosures are also generally of an imperfect character, so that the animals of one depasture upon the lands of another, and all this occurs without attention or complaint. But when their children have grown up around them, and by the advance of society the land has become valuable, so that every foot is required to satisfy the demands of the increasing population,—the boundary lines are run over again with unerring certainty—the crooked places are made straight, and substantial enclosures are erected, so that every owner may enjoy their own.
Thus has it been with the Federal and State governments. In setting in motion the vast machinery of the new system, each endeavoring to accomplish those objects which pressed most forcibly upon its attention, they have frequently encroached upon the rights and prerogatives of each other. The encroachments have in some instances been rectified, but in others they have been acquiesced in, and the boundary lines between the two systems have been made crooked. The subject we are to consider here belongs to the latter class. And I fear this encroachment has been acquiesced in more readily than it would otherwise have been, because it was imagined that it concerned only the rights of a class of people who were poor, persecuted, despised and outcast among us. But the time has now come when it concerns the liberties of us all, white as well as black, that these boundary lines should be re-examined, and the respective rights of the Federal and State powers in this matter should be placed on their true basis. For the people are overshadowed with clouds of prosecutions, swarming with pains and penalties as numerous as the locusts which swarmed over Egypt; and it has become of vital interest to them to know whether the power for these things is really found in the Constitution, or be nothing better than a barefaced usurpation.
And in setting out upon this investigation, it is important to determine whether we have any settled rule of construction, in the light of which we can travel to a safe and just conclusion in this matter. Judge Story, in the 1st volume of his Commentaries on the Constitution, on page 383, tells us that much of the difficulty that has arisen among the various disputants upon this instrument, has been caused by the want of "uniform rules" of construction. I call the attention of the Court to this word "uniform," because we shall find it used again by Judge Story before we finish the examination. I think there is such a safe and uniform rule, and that it is to be derived, clearly and plainly, from the Constitution itself. It is admitted on all hands, that the General Government is one of limited powers, and that it can exercise none not delegated to it by the Constitution. It is well known that they who framed that government, while they wished to give it the powers necessary to accomplish the great objects committed to its care, were yet jealous of its strength, and intended to confine it to the exercise of the powers delegated to it by the instrument. We find, therefore, that the instrument ​enumerates its powers in a manner as clear and plain as language will permit. After this enumeration there is a clause giving it the general power to make all laws necessary and proper for carrying into execution the enumerated powers, and all other powers vested in the general government or any of its officers or departments. But so jealous were the people of that government, that even this careful and guarded manner of expressing its powers, was not deemed sufficient, but in order to secure the reserved rights of the States from all doubt or question, they adopted the tenth amendment, that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."
It is clear, then, from the very face of the instrument, that congress can exercise no power, unless it is expressly delegated to it, or is necessary to carry into execution some express power. This rule is laid down by Mr. Madison in his Report to which I have already referred the court, in the 4th of Elliott's debates, on page 567, in the following clear and admirable manner:
"Whenever therefore a question arises concerning the constitutionality of a particular power, the first question, in order to determine its constitutionality, is whether the power is expressed in the constitution? If it be, the question is decided. If it be not, the next inquiry is whether it is clearly implied as incidental to an express grant, and necessary to its execution. If it be, congress may exercise it; if it be not, congress cannot exercise it."
The same rule has also been established by the Supreme court of the United States. In the case of Martin vs. Hunter's Lessee, in the 3d Condensed Reports on page 583, the court says:
"The Government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication."
The words "necessary implication" used here, are evidently founded on the clause giving the power to make all laws "necessary and proper to carry into execution" the express powers, &c. And this is left in no doubt because in the case of Gibbons vs. Ogden, 5th Condensed Reports, on page 574, the same court says:
"No direct general power over these objects is granted to congress; and consequently they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose or is clearly incidental to some power which is expressly given."
Now, in the light of this plain rule, let us proceed to examine the constitution. The only clause in that instrument relating to fugitives from labor is found in the 2d section of the 4th article, and is as follows:
"No person held to service or labor in one State under the Laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due!"
Is there any express grant of power to congress here? No one pretends it. The clause has been stretched upon the rack of judicial ingenuity till its joints quivered, to extort from it a confession of such a grant, but it has remained silent as the tomb. Congress is neither expressly mentioned in it, nor any idea of it implied. No man from reading this clause would know that such a thing as Congress existed; or would suspect that it was anything more than it purports to be on its face—a mere article of compact between the States, depending for its execution entirely on their integrity and good faith. But one legislative power is spoken of in it, and that is the State. A positive prohibition to discharge from service or labor is imposed; and then, in the same sentence, a positive obligation to deliver up? To whom is this obligation addressed? Clearly to the same power that is forbidden to discharge. That is the natural and ordinary import of the language. It is addressed to the State Government because that is mentioned immediately in connection with it, and no other power is mentioned at all. The clause assumes to regulate the legislation of the State. It prescribes what shall not be done, and commands what shall be done. The prohibition is expressly directed to the State, and the obligation to "deliver up," following in the same sentence, applies to the State by the ordinary force of language, without expressly saying "shall be delivered up" by the State. If I make an agreement with another that if my horse escape into his pasture, the animal shall not be kept by him for his own use, but shall be delivered up to me again, all men would understand the obligation to deliver, to be imposed upon the one who was forbidden to keep. Because, although it does not state expressly that he shall deliver, yet that is plainly implied. So when the constitution asserts that a fugitive escaping into a State, shall not be discharged by its laws, but shall be delivered up, it is just as plainly implied that he shall be delivered up by the State.
Suppose the words were changed so as to say, that when the fugitive escapes into a State, "the State shall not discharge him, but shall deliver him up." Could any one by any possible mode of construction, pretend that in that case the State would not be the party to "deliver up." Certainly not. Yet the idea is precisely the same as the words now stand. And no one can tear the sentence asunder, and thrust in a third power, to fulfill the obligation imposed, without doing equal violence to the import of the words, with that which he would do, if they were in the form I have supposed.
The State is implied also by the meaning of the word "deliver." The clause assumes that except for its obligation, the State would have uncontrolled power over the fugitive. With reference to the State, the words "shall be delivered up," were therefore properly used. But if a third power was to have the right to come in and carry the fugitive away, whether the State were willing or not, that could not rightly be called a "delivery up," but would be a taking away.
It seems plain, therefore, that the true construction of this clause leaves it a mere article of compact between the States, conferring no power whatever on the General Government.
And this conctruction is sutained by very high authorities. In the case of Jack vs. Martin, which arose under the law of '93, and is reported in the 14th of Wendell, Chancellor Walworth delivered a noble and just opinion against the constitutionality of the law. In that opinion he says:
"I have looked in vain among the powers delegated to congress by the constitution for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be embraced in the general grant of incidental powers, contained in the last clause of the constitution relative to the powers of congress. The law of the United States respecting fugitives from justice and fugitive slaves is not a law to carry into effect any of the powers expressly granted to Congress, or any other power vested by the constitution in the Government of the United States, or any department or any officer thereof! It appears to be a law to regulate the exercise of the rights secured to the individual States, or the inhabitants thereof, by the second section of the fourth article of the constitution; which section, like the ninth section of the first article, merely imposes a restriction and a duty upon other States and individuals in relation to such rights, but vests no power in the Federal Government, or any department or officer thereof, except the judicial power of decalring and enforcing the the rights secured by the constitution."
The next authority to which I will refer upon this point is the authority of Daniel Webster. In his celebrated 7th of March speech, in speaking of this clause he says:
"I have always thought that the constitution addressed itself to the Legislatures of the States, or to the States themselves. It says that those persons escaping to other States shall be delivered up, and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and becoming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me that the import of the passage is that the State itself, in obedience to the constitution, shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now."
I need not inform this court that the man who spoke those words, won, amid all his able contemporaries, the title of "the great expounder of the constitution." He won that title, not only by the power and clearness of his expositions, but because he favored the liberal, rather than the strict construction of the instrument. Another face which is well understood, and I believe is admitted by the friends of that great man, is, that in making that 7th of March speech, his object was, not only to fulfill what he believed to be his duty to his country, but also, to use his own words, "to do his whole duty to his southern brethren," in order to secure their support as a nominee for the Presidency. Yet notwithstanding such was his object, justice to himself and to his world-wide reputation as a constitutional lawyer, required him to admit ​that this clause addresses itself entirely to the States, and confers no power whatever on the General Government! Sir, the opinion of Daniel Webster, given under such circumstances, weighs with a mountain weight in the scales that are to decide this question, and there is not enough force in all the judicial opinions that have been given on the opposite side, to start it alone, from the counter.
But the truth of this construction is made apparent, not only by the arguments of its friends, but by the admissions of its enemies. In the case of Jack vs. Martin, in the 14th of Wendell, to which I have already referred, Senator Bishop, as a member of the New York Court of Errors, delivered an opinion in favor of the constitutionality of the law of '93. It was the only opinion delivered, except that of the Chancellor already mentioned. In that opinion, he starts off, into an investigation of the objects of this clause, with the following extraordinary statement. He says:
"In the absence of any precise authority in the constitution, in regard to the removal of fugitive slaves, it becomes important to enquire as to the motives of the members of the convention who represented the slaveholding States, and the considerations which were likely to operate most powerfully upon them."
I shall have occasion to call the attention of the Court more particularly to the last part of this statement hereafter, but that which I wish it now to notice, is, that Senator Bishop admits that there is an "absence in the constitution" of that authority with which he seeks to clothe the General Government. And in order to find any support for that authority, he is compelled to go out of the instrument.
Mr. Meredith, who argued the Prigg case before the Supreme Court, in favor of the power of congress, in commenting on this clause, used the following language:
"Here, then, are two acts to be done. A claim is to be made, but the mode in which it is to be made, and the forms to be observed in making it, are not provided for. Again, a delivery is required, but from whom, and in what manner, the constitution does not prescribe."
Now, in order for congress to legislate upon this subject, the constitution must "prescribe" that the delivery is to take place from the General Government. Since, therefore, it prescribes no such thing, as admitted by Mr. Meredith, it follows that the delivery is to be from the State; because by the very instrument itself, if the power is not delegated to the General Government, it is "reserved to the States respectively, or to the people."
In the same case, Chief Justice Taney delivered a separate opinion. He concurred with a majority of the court, that congress had the right to legislate upon this matter, but claimed that the States had a concurrent right. In maintaining the latter opinion he speaks as follows concerning this clause:
"The language used in the constitution does not, in my judgment, justify the construction given to it by the court. It contains no words prohibiting the several States from passing laws to enforce this right. They are in express terms forbidden to make any regulation that shall impair it. But there the prohibition stops.—And according to the settled rules of construction for all written instruments, the prohibition being confined to laws injurious to the right, the power to pass laws to support and enforce it, is necessarily implied. And the words of the article which direct that the fugitive shall be delivered up, seem evidently designed to impose it as a duty upon the people of the several States, to pass laws to carry into execution in good faith, the compact into which they thus solemnly entered with each other.
Judge McLean also delivered a separate opinion in the same case, and though he sustained the power of congress, yet in speaking of this clause he says:
"The States are inhibited from passing any law or regulation which shall discharge a fugitive slave from the service of his master, and a positive duty is enjoined on them to deliver him up, &c."
Here, then, is the weight of authority in favor of the construction of this clause, for which I contend, that seems to me to be absolutely overwhelming and irresistible.—But to place it beyond all question, to make assurance doubly sure, we have the authority of the framers of the instrument themselves, manifested almost as clearly as if they had said in express words, that congress should have no power over this matter. Whence is this authority derived? In the first section of this same article 4, we find the following:
"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State."
This clause, together with several others, stood as articles of compact, among the old articles of confederation. It was never pretended that they conferred any power on the congress of the Confederation. The clause concerning the delivery up of fugitives from justice was among them. These clauses were copied from the articles of confederation into the present constitution. And it is manifest that the framers supposed that if left in their original shape, they would confer no more power on the present congress, than they conferred on the old. Therefore, after copying into the constitution this clause concerning records, &c., they proceeded to add to it the following power:
"And congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof," and so the section now stands.
They evidently supposed that without this addition, the clause conferred no power on congress. The implication from this, is almost irresistible, that they regarded the clause concerning fugitives, as vesting no power in congress, and that if they had intended to grant such power, they would have added it expressly, as they did in the clause concerning records.
I have now finished my argument upon the meaning of the clause and have shown, as it seems to me, that by its fair and true construction, it is a mere article of compact between the States, vesting no power whatever in the General Government. And if this is so, then the Fugitive Act is an exercise of usurped power, destructive of the rights of the States, and can impose no obligation on their judicial tribunals.
It remains for me now, in order to finish this branch of the subject, to examine some of the decisions that have been made sustaining the legislation of congress. These decisions have been made mostly concerning the law of '93. The question, however, so far as the objection I am now considering, is concerned, was the same under that law, as under the law of 1850. Almost the first case we find upon the subject, is that of Glen vs. Hodges, 9th Johnson, 67. It was decided in 1812. No objection was made to the law of '93, but it was treated as constitutional without question from any quarter. We find, also, in the 2d Pick, page 11, the case of the Commonwealth vs. Griffith.—In that case the law was objected to as unconstitutional because it provided that the person claimed might be seized without warrant. It was alleged that this infringed the right of the people to be secure from unreasonable searches, &c. This objection was overruled by the court. But the question of the power of congress to legislate upon the subject was neither raised nor decided. This case was decided only a few years after the Missouri Compromise, which followed on of the great excitements upon this question. It will be seen that the court, following the lead of the politicians, decides that the constitution was a "compromise." It says in that instrument we agreed to treat slaves as property, though it admits that "the words of it were used out of delicacy," so as not to offend some in the convention, whose feelings were abhorrent to slavery." This looks very much like an admission that the words do not mean slaves, but this point I shall not urge. Of these two cases, I shall only say that they are not authorities against the objection I am now urging, because that objection was not raised in them.—On the contrary, by acquiescing in the validity of the law, without raising those objections, which have since agitated the highest tribunal of the States and nation, those cases furnish evidence of the assertion I have made here, that this legislation of congress had been acquiesced in, without that rigid examination its importance demanded. They are instances where the crooked boundary lines, between the two systems, were allowed to stand without complaint.
The decision of the Massachusetts Court, in the Sims case, already referred to, rests upon the decisions that had been previously made. I shall therefore confine my further examination to those decisions, and if their reasoning can be answered, of course the superstructure reared upon them, falls when the foundation is undermined.
I suppose the only decisions that stand in our way, are the opinions delivered in the case of Jack vs. Martin, in New York, and in the Prigg case, before the Supreme Court of the United States. I propse, therefore, to examine these at some length. But it may, perhaps, be proper in the first place to say, that the case of Jack vs. Martin, before the New York Court of Errors, is not an authority against us. Chancellor Walworth delivered an opinion against the constitutionality of the law, and Senator Bishop, one in its favor. But the Chancellor, not ​withstanding his opinion, voted to affirm the decision of the court below, on the ground that by the pleadings, the fugitive admitted himself to be a slave. This was the only point decided in the Court of Errors. The vote of the court was unanimous, but how many were of the same opinion as the Chancellor, and how many of that Senator Bishop, does not appear. For aught that appears in the report, all except Senator Bishop, may have believed the law to be unconstitutional.
I have said that I should endeavor to show that these decisions were in violation of well settled rules of construction. I shall now proceed in that attempt, and shall point out the rules that I claim have been violated.
In the first place, let me invite the attention of the court to the further consideration of the implied powers, that congress may legitimately exercise. In all the cases where its powers have been called in question, we see much about "implied powers," and it is therefore important to determine what kind of implied powers it may rightfully claim. And upon this subject I understand the rule to be, that it can claim none, except such as are implied, as incidental to some express power, and necessary to its execution. The authorities sustaining this rule I have already referred to. They lay it down in express terms. And I think it is to be derived, with equal clearness, from the whole course of reasoning, in those cases which have been regarded as stretching the power of congress even beyond its utmost verge. Take, for instance, the Bank case. The court there admits that Congress can exercise no powers not delegated to it, but claims that there is nothing in the constitution excluding implied powers. It then goes on to show what kind of implied powers it means. It says that it would have been impossible to specify all the "means" by which the government might carry into execution the powers granted, and that the instrument therefore expresses only the great powers, leaving congress at liberty to adopt such means as were necessary to their execution, and claiming that the power to adopt those means, was incidental to the express power. The court entered into a labored argument to show that congress might even go to this extent,—that it might even adopt the means necessary to carry into execution its express powers. It also claimed that the means need not be "indispensably necessary," but if they were ordinarily necessary and proper for the end, the degree of necessity was to be judged by the legislature and not by the court. The court then says that although the power to incorporate a Bank is not among the enumerated powers of the government, yet that it has the great powers "to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies." It then proceeded to urge that a Bank was a necessary and proper means to carry into execution those great express powers, and placed is constitutionality upon that ground, and on that alone. This decision has been regarded by a great portion of the American People, as having carried the powers of congress entirely beyond their just limits. I have, therefore, alluded to it at some length, to show that even in that case, the only kind of implied power claimed for congress, were such as were incidental to the execution of express powers. There must be an express power pointed out in the first place, before the doctrine of implied powers can be called into action at all. They must show a visible express trunk in the instrument itself, on which the proposed implied power is to be grafted, as incidental to its execution.
I do not urge before this court, that it is not proper in any case, to go into an investigation of the objects of a clause in order to construe it. This may be done where its meaning is doubtful. It may be done in construing the constitution as well as other instruments. Where a power is given, the extent of which is doubtful, the objections of it may be enquired into, in order to give it a just construction. Neither do I contend that when a power is given, it should receive a narrow and illiberal construction, that might defeat its purpose. It should be constructed fairly and reasonably. But what I contend for, is this: that so far as the constitution is concerned, the objects of a clause can only be enquired into in order to construe a "given power," and not to give a power. In the case of Gibbons vs. Ogden, 5th Con. R., on page 583, the court says,—"If from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction." This language is confined to the construction of a "given power" It would be applicable in construing the powers "to regulate commerce,"—"to declare war," or any other express power of doubtful extent. But it affords no sanction for any court, admitting that the words of a clause confer no power on Congress, to enquire into its objects, for the purpose of implying in Congress as a matter of convenience to its accomplishment, an independent power to carry it to into execution. Because the instrument expressly excluded from Congress such implied powers; and therefore to enquire into the objects and intention of a particular clause in order to imply from those objects and intentions, a power in the General Government to execute it,—not given by the words, nor incidental to a given power, would be to make the intention of a particular clause, defeat the manifest intention of the whole instrument. It would open to the General Government the boundless and unexplored regions of implication, from which it might draw whataever power it desired.
Another rule of construction violated by these decisions is that the intention of an instrument is to be gathered from its words. And that they are never to be department from, except to avoid a difficulty that cannot be otherwise avoided. In the case of Ogden vs. Saunders 12th Wheaton 332, in an opinion delivered by Chief Justice Marshall, this rule is laid down as follows: "To say that the intention of the instrument is to prevail; that this intention must be collected form its words, &c.,—it to repeat what has been already said more at large and is all that can be necessary!"
In the case of Sturges vs. Crowninshield, 4th Con. R., page 418, the Court says: "Before discussin this argument, it may not be improper to premise, that although the spirit of an instrument, especially of a constitution is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words!"
I shall show that these decisions leave the words of the instrument and go, without cause, into a historical investigation to arrive at its intention.
There is another rule that when there is no ambiguity there is no room for construction. This is laid down in the 1st Story's Commentaries on the Constitution, page 284, as follows:
"When its words are plain, clear and determinate, they require no interpretation, and it should be admitted, if at all, with great caution, and only from necessity, to escape some absurd consequence, or to guard against some fatal evil." And after alluding to some isntances, where questions might arise form the doubtful meaning of words, he says:—"Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only on the most persuasive reasons!"
Now, sir, I contend that there is no ambiguity in this fugitive clause, as to the power that is to carry it into execution. There has always been a great question in the minds of many, whether the words applied properly to slaves.—There might be some ambiguity upon that, but that has not arisen in any of these cases. There is no ambiguity on any other point. The words are plain and clear. The fugitive is not to be discharged by the State, but is to be delivered up. But it is said the clause does not prescribe by whom he is to be delivered up, and therefore there is an ambiguity. I think I have already shown to the court, that the plain, natural import of the words is, that he is to be delivered up by the State. But admit that this is not so, and that the words simply require a thing to be done, without saying whether the General Government, or the States shall do it,—and this is the most that can be claimed. Is there any ambiguity then, as to which shal do it? Clearly not! There might be, if the presumptions were euqal in favor of the two powers; but this is not so. The General Government must show its authority,—the States need not.—If the words do not prescribe which power may execute the clause, of course they do not give the General Government authority to execute it. Therefore the States come in by the 10th amendment, and bear off this power, as they do all others, not delegated to the General Government.—Looking at the whole instrument, thereore, there is no ambiguity as to which this power belongs.
And now let us proceed to the decisions themselves. ​And in the first place, I will ask the attention of the court again, to the manner in which Senator Bishop, in the 14th Wendell, sets out, upon his enquiry into the objects of the clause. I have already referred to it once, but it is so remarkable as to be worthy of a second examination. He says:
"In the absence of any precise authority in the constitution, in regard to the removal of fugitive slaves, it becomes important to enquire as to the motives of the members of the convention who represented the slaveholding states, and the considerations which were likely to operate most powerfully upon them."
Sir, we could hardly have hoped that they who had determined to sustain this power, would have so frankly admitted the dangerous rule by which they were to arrive at the conclusion! The Senator says that the authority he seeks is not in the instrument. He starts, therefore, in pursuit of it, and where does he go? Does he enquire into the motives of the people who adopted the constitution? Does he even enquire into the motives of the convention that framed? Not at all. He goes to "the motives of those members of the convention who represented the slaveholding states!" So one-sided and dangerous a rule of construction was never broached in any tribunal before. It bears the seal of its condemnation on its own forehead! If the rule laid down in this bold avowal, is to prevail, all others must be overthrown, and all safety is at an end. But the Senator practiced upon hi rule. (Mr. Paine here read at length from the opinion and then proceeded.) It will be seen from what I have read that he comes to the conclusion that the object of this clause, was to secure the recapture of fugitive slaves—that he thinks the States would fail to abide by the obligation if left to them—that congress can accomplish its object more effectually, and more for the convenience of the owners, than the States, and therefore the clause should be so construed as to give congress the power! This is the sum and substance of the argument, and I submit that it is a plain and palpable violation of all those settled rules to which I have called the attention of the court.—The Senator, at the begining, professes an intention to abide by the rule as to incidental powers. But he points out no power to which he claims this is incidental. On the contrary, he implies it as an independent power in the General Government, because he thinks that government can execute the clause better than the States. Upon the propriety of making such an investigation into motives, as was made by the Senator, I refer the court to the 2d of Story's Commentaries, page 533, where, in speaking of this doctrine, he says:
"Such a doctrine would be novel and absurd. It wo'd confuse and destroy all the tests of constitutional rights and authorities. Congress could never pass any law, without an inquisition into the motives of every member, and even then they be re-examinable. Besides, what possible means can there be of making such investigations? The motives of many of the members may be, nay, must be, utterly unknown, and incapable of ascertainment by any judicial or other inquiry; they may be mixed up in various manners and degrees; they may be opposite to, or independent of each other. The constitution would thus depend on processes utterly vague and imcomprehensible, and the written intent of the legislature upon its words and acts, the lex scripta would be contradicted or obliterated by conjecture, and parol declarations and fleeting reveries and heated imaginations. No government on earth could rest for a moment on such a foundation. It would be a constitution of sand, heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature (and for the same reason also every clause of the constitution) must therefore be judged of from its objects an intent, as they are embodied in its provisions."
Judge Nelson, who delivered the opinion of the Supreme Court of New York, in this same case of Jack vs. Martin, in the 12th Wendell, says: "It is material to look into the objects of this clause of the Constitution, the evil to be guarded against, and the nature and character of the rights to be protected and enforced in order to comprehend its meaning, and determine what powers, and to what extent may be rightfully claimed under it." If it were admitted that the general government was to do, whatever is to be done, to execute the clause, this rule might correct. But when it is admitted that the words vest no power in that government—to enquire into the objects of the clause to determine whether Congress has the power to execute it or not, I have already attempted to show, is a violation of the settled rules of construction and of the constitution itself.
But the Judge accordingly proceeded, and made a similar but rather strong argument of convenience, that was afterwards made by Senator Bishop in the Court of Errors. (Mr. Paine here read at some length from the opinion.) It is plainly and palpably nothing more than an argument of convenience. The Court thinks the States would not execute the clause faithfully—that it would have been unwise to have left it with them—that Congress can accomplish it more effectually—therefore they intended to give Congress the power, and therefore Congress has the power! That is all there is of it! A mere argument of convenience, from which the court implies in Congress a power, not incidental to some other, but independent, standing by itself.
And now we come to the Prigg case, decided by the Supreme Court of the United States, which has stood like a lion in the way of everybody, I believe, except those who have carefully examined it. On page 610, 16th Peters, the Court in its opinion delivered by Judge Story, says:
"Before, however, we proceed to the points more immediately before us, it may be well—in order to clear the case of difficulty—to say that in the exposition of this part of the constitution, we shall limit ourselves to those considerations that appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature."
It will be perceived here, that the court scented the danger afar off, and like a prudent man, began in season to prepare a way of escape. It was conscious that it was about to violate the settled rules of construction, and therefore it proceeded:
"It will, indeed, probably be found, when we look to the character of the constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation after all will be found to be, to look to the nature and object of particular powers, duties and rights, with all the lights and aids of contemporary history, and to give to the words of each, just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed!"
Lysander Spooner, who contends that the clause does not apply to slaves at all, asserts that the words "consistent with their legitimate meaning," contain a deliberate falsehood thrown in by the court, to cover up its fraud.—Because if their construction was "consistent with the legitimate meaning" of the words, it would have been unnecessary for the court to have broken away from all the settled rules to arrive at it. It might not be considered respectful for me to go to the extent that Mr. Spooner did, but I must say that it seems evident that those words as used by the court, and a similar expression used by Judge Nelson, were thrown in as salvos, to break, as far as possible, the force of the violence they were about to perpetrate on the established rules of construction. The court evidently meant to say, that if from the object of a clause, it appeared that congress could execute it better than the States, they would so construe it as to give congress the power, unless the words absolutely forbid it! This was clearly all that was meant by the words, "consistent with their legitimate meaning." Because the court did not attempt to show that there were any words in the clause, which, either by their "legitimate" or illegitimate meaning, vested any power in congress, or even indicated the existence of such a body.
It will be remembered by the court that Judge Story, in his Commentaries, to which I have referred, says that they difficulty that has arisen among the various interpreters of the constitution, was for the want of some "uniform rule" of construction. But here he asserts that no uniform rule can be applied to it!
I think I have now shown that these decisions assume an ambiguity in this clause when there is none, that they abandon the words without just cause, to seek for the intention in a historical investigation, and then infer an independent power in congress to execute it, from a mere argument of convenience. I think I have shown that in doing so, they violate and overturn the settled rules of construction, and leave no safety to the States against legislative and judicial usurpations of all their powers. I cannot express my condemnation of this mode of construction in any better manner than by quoting from the Commentaries of Judge Story, who delivered this very ​opinion in the Prigg case. I read from the first volume, beginning on page 387:
"The constitution was adopted by the people of the United States, and it was submitted to the whole, upon a just survey of its provisions as they stood in the text itself. In different States and in different conventions, different and very opposite objections are known to have prevailed, and might well be presumed to prevail. Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections and win local favor. And there can be no certainty, either that the different State Conventions, in ratifying the constitution, gave the same uniform interpretations to its language, or that even in a single State Convention, the same reasoning prevailed with a majority, much less with the whole of the supporters of it.
"Some may have interpreted its language strictly and clearly; others from a different habit of thinking may have given it a large and liberal meaning. It is not to be presumed that even in the convention which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation.—Every member necessarily judged for himself, and the judgment of no one could, or ought to be conclusive upon others.
"Is the sense of the constitution to be ascertained, not by its own text, but by the 'probable meaning' to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesmen, or the jealous exaggerations of others. Is the Constitution of the United States to be the only instrument which is not to be interpreted by what is written, but by probable guesses aside from the text? What would be said of interpreting a statue of a State Legislature, by endeavoring to find out from private sources the objects and opinions of every member—how every one thought, what he wished, and how he interpreted it? Suppose different persons had different opinions, what is to be done? Suppose different persons are not agreed as to the probable meaning of the framers or of the people, what interpretation is to be followed? These and many questions of the same sort might be asked.
"It is evident that there can be no security to the people in any constitution of government, if the are not to judge of it by the fair meaning of the text, but the words are to be bent and broken by the probable meaning of persons whom they never knew, and whose opinions and means of information may be no better than their own. The people adopted the constitution according to the words of the text, in their reasonable interpretation, and not according to the private interpretation of any particular men.—* * * * The text was adopted by the people in its obvious and general sense. We have no means of knowing that any gloss short of this sense was either contemplated or approved by the people; and such a gloss, tho' satisfactory in one State, might have been the very ground of objection in another. It might have formed a motive to reject it in one and to adopt it in another. The sense of a part of the people has no title to be deemed the sense of the whole. Motives of State policy or State interest may very properly have influence in the question of ratifying it, but the Constitution itself must be expounded as it stands, and not as that policy or that interest may seem now to dictate!"
More scathing words of rebuke for the mode of construction adopted in these cases than these used by Judge Story, could not well be uttered. He is one Story, when seeking as a judge to sustain a usurped power, but entirely a different Story, when writing as an independent author, with no purposes but those of truth to subserve. See, also, how strongly he denounces a resort to the argument of convenience, which is all that these decisions rest upon. He says:
"On the other hand, a rule of equal importance, is not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even mischeivous!
"Nor should it ever be lost sight of that the government of the United States is one of limited and enumerated poewrs, and that a departure from the true import and sense of its powers is, pro tanto, the establishment of a new constitution. It is doing for the people what they have not chosen to do for themselves. It is usurping the function of a legislator, and deserting those of an expounder of the law. Arguments drawn from impolicy or inconvenience, ought here to be of no weight. The only sound principle is to declare ita lex scripta est, to follow and to obey."
And now, Sir, I propse to examine more closely the reasoning in the Prigg case, and attempt to show that it is entirely unsatisfactory and insufficient to support the decision of the court. In the first place, I shall contend that, admitting it to be proper to go into a historical investigation of the motives of members, in order to get at the intention of the constitution, still the court has assumed positions as the basis of its reasoning, which such an historical investigation does not warrant. It states at first that, "the true design of this clause, was to guard against the doctrines and principles prevalent in the nonslaveholding States, by preventing them from intermeddling with, or obstructing or abolishing the rights of the owners of slaves. It then proceeds to argue in favor of the rights of congress to legislate, on the ground that the object was to afford to the owner the greatest possible facilities for recovering his slaves. As it proceeds in the argument, it enlarges the object of the constitution, from the simple design of preventing the States from destroying by legislation, the rights of the owner, into the much more extensive design of furnishing to the owner the greatest possible certainty of recapture, and the most complete protection against all interference with his rights, not only by legislation, but also by the acts of private individuals. [The case is reported in the 16th Peters U. S. Reports, page 539.] On the 614th page the court, in speaking of the obstacles which the master may meet, says;
"He may not be able to lay his hands upon his slave.—He may not be able to enforce his rights against persons who either secrete, or conceal, or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership; as to the courts in which he shall sue, and as to the actions which he may bring, or the process he may use to compel the delivery of the slave. Nay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem, or no specific mode of re-possessing the slave, leaving the owner at best, not that right which the constitution designed to secure, a specific delivery and re-possession of the slave, but a mere remedy in damages; and that perhaps against persons utterly insolvent or worthless."
It is here expressly assumed by the court, and its whole reasoning is based on this assumption, that the object of the constitution was to ensure to the owner, "the re-possession of the slave" against any and all obstacles! It is conceived that this is a very different object, from that of preventing the States by legislation, from setting the slave free. And a historical investigation shows, beyond all doubt, that the latter was the only object had in view in inserting the clause in question in the constitution.
The very authorities referred to by the court, prove this position. Judge Wayne, on page 648, quotes the following statement of Judge Iredell, in the North Carolina Convention. Judge Iredell was a member of the convention which framed the constitution, and in speaking of the clause under consideration, in the State Convention, he said:
"In some of the Northern States they have emancipated all their slaves. If any one of our slaves go there and remain there a certain time, they would, by the present laws be entitled to their freedom, so that their masters could not get them again. This would be extremely prejudicial to the inhabitants of the Southern States; and to prevent it this clause is inserted in the constitution!"
Mr. Madison, in the Virginia Convention, said:
"Another clause secures us that property which we now possess. At present, if any slave elopes to any of those States where slaves are free, he becomes emancipated by their laws."
He then quoted the clause in the constitution, showing that under it, such emancipation could no longer take place.
These quotations show clearly that the evil complained of was the emancipation of the slaves by the laws of the States to which they escaped, and that the object of the clause was to prevent that emancipation. There is not the slightest historical evidence, that at the time the constitution was adopted, any one supposed that it imposed a duty on the people of the Free States, to become active in seizing upon and transporting back fugitive slaves.—Or that they designed to furnish slaveholders with any protection against any of the numerous dangers to which that peculiar species of property is always exposed, other than the one specifically named, that is, the discharge from service or labor by the law of the State, or a legal hindrance to his taking the slave away.
The people of the Northern States had, at that time become favorable to the policy of emancipation by law, and ​regarded slavery as a great evil and wrong, but their sentiments had not gone so far as to occasion individual interference. It is a historical fact, alluded to in the opinion of Chief Justice Shaw, that under the confederation, fugitive slaves were given up as a matter of comity.—There was no article requiring it. Mr. Butler, of South Carolina, in a speech in the Senate, at the time this act was passed, treated it as a matter of astonishment, that the whole power of the Union had to be called in to accomplish what "our simple ancestors" performed without compulsion. He said that for five or six years after the adoption of the constitution, this clause was universally obeyed, and needed no legislation from any quarter, to carry it into execution. These facts, and the fact that among all the numerous drafts that were presented, in the convention that framed the constitution, there was none containing any clause about the fugitives from labor, and that no such was proposed until nearly the close of the convention, and that it was adopted in its present shape, without comment or opposition, show that there was no such solicitude about this matter as these decisions pretend. They show that the object of the clause was only to protect the slave-owners from the effect of the laws of the Northern States, and not against any other danger.
The design was to prevent the State from throwing over the slave the broad and impenetrable shield of its law, to protect him from the power of his master. Against all other dangers, the love of liberty in the bosom of the slave, the humanity or the fraud of third persons, the master was left to protect himself as best he might. And when the court argues the question as though the object were to furnish him a remedy against all dangers, it goes much farther than there is anything either in or out of the instrument to warrant it in going. It confines its views to only one side. It labors to arrive at such a construction as shall best suit the convenience and accomplish the purposes of the slave-owners. Yet the court has itself told us that this is one of the provisions which were "matters of compromise of opposing interests and opinions." If that was the case, then in the historical investigation, there would be no justice in searching out the extreme views and purposes of one side only, and giving such a construction as would best accomplish them. On the contrary, the opinions and purposes of both sides should be equally considered. And it, as the court assert, it was natural for the slave owners to desire to remove as many obstacles as possible, we may, with equal justice, assert on the other hand, that it was natural for those who held "opposite opinions," to desire to remove as few as possible. If one side desired slavery, the other desired liberty. The people of the free States were hostile to slavery. They had exercised the right of emancipation by their laws, an act which they never would have done in relation to any other property, showing that they regarded the claim of property in a human being as without any foundation in natural right and justice. They believed in the language of Senator Bishop, in the case of Jack vs. Martin, that slavery is abhorred in all nations where the light of civilization and refinement has penetrated, as repugnant to every principle of justice and humanity, and deserving the condemnation of God and man."
Since such were their sentiments, the natural inference certainly is, that if for any purpose they consented to surrender a portion of their right to act against that system, they desired to surrender as little as possible, and intended to surrender no more than was clearly implied in the instrument by which the surrender was made. And there seems to be far more reason to believe that the free States would not have consented to the union with this clause, if they had supposed it granted to congress the power to make slave-hunters of their people and to jeopardize their liberties, than to believe that the South would not have consented to the union without this clause. The court asserts that the latter is true, but the assertion does not seem to be well-founded. Indeed, it cannot be possibly conceived why the South should have refused to enter the Union without this clause, when it is expressly admitted that under the old confederation they could not compel the delivery of their slaves, and consequently would have been in no worse a position by coming in, than by remaining out. An historical investigation shows, then, both by the express statements of slave-owners and by the natural desires of the people of the free States, that the only object of the clause was to prevent the States from giving to the slaves that escaped into them a legal right to their liberty.
How is this object to be accomplished? Clearly as follows: The court holds that the owner may, by virtue of the constitution, seize upon his slave wherever he finds him in the United States. If this is so, the only means by which the slave could be legally discharged would be to resort to some State law for the protection of liberty. If he did so resort, it would be the duty of the tribunal before which the process was returned, on proof that he owed service or labor to the claimant in another State, according to its laws, not to discharge him, but to "deliver him up" to the claimant again, that is, to allow the claimant to take him away. By this means the object of the clause is accomplished. The State does not, by any of its laws, discharge him, but the owner is allowed to maintain over him such jurisdiction as he can. And that is all the right he has in the slave States, so far as the master and slave are concerned. If he can hold him by force, he holds him, and if the slave can escape, he does so.
But it is said that the words "he shall be delivered up on claim," &c., require positive legislation to prescribe the manner in which the claim shall be made. It is argued that the word "claim" necessarily implies legislation "to protect the right and enforce the delivery "of the property claimed." The Court says on page 615: "A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition, was given by Lord Dyer, as cited in Stowell vs. Zouch, Plowder 359, and it is equally applicable to the present case; that "a claim is a challenge by a man of the property or the ownership of a thing, which he has not in possession, but which is wrongfully detained from him."
But a moment's examination seems sufficient to convince any one that the word "claim," could not have been used in the constitution, in its technical legal sense. The court has decided and the fugitive law provides that the owner may seize upon his slave without process. He, certainly, after that, can make no "claim" in its technical sense, because by the definition just cited, a "claim" is of something "that is wrongfully detained" from the claimant.—And consequently if the definition and reasoning of the court are correct, there never could be a legal "delivery up," in a case where the slave was seized without process, because the "delivery" is only to take place "on claim," and there can be no claim after seizure, because the property is already in possession.
Take then, the case where the slave is not in possession of the owner. Can he make a technical claim then?—Clearly not. The court says, on page 516—
"It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person."
Now, there is no "other person" in a free State, against whom the claim can be made. For by the law of that State, the fugitive is not a subject of property, and consequently no citizen in the State can assert any right to him, or have him in possession, but he may go at large where he pleases. He may be hidden in the forests or the swamps, or fleeing from place to place, to find some spot where his wearied feet may rest in peace. In this event, then, against what "other person" shall the claim be made?—There is none. And, therefore, by the reasoning of the court, a constitutional delivery can never take place. Because it can only take place "on claim," and no claim can be made. Where the slave is seized without process, it cannot be made, because the property is already in possession, and no longer "detained;" and it cannot be made when the slave is out of possession, for there is no "other person" against whom to make it.
Neither a free State, nor any of its citizens, nor the United States could have the fugitive in possession. Consequently no technical legal claim could be made against any person for his delivery. And in the practice under the Fugitive Law, no claim is made against "another person." These considerations seem clearly to show, that even the interest of the slave owners requires that the word "claim," in this clause, should not be construed in its technical legal sense. The error of the court was in treating the case as though the slave were recognized as property in the free States. And this view is sustained by the opinion of Judge Wayne. On page 646 he says:
"The case of a fugitive slave is not like that of a contest for other property, to be determined betweeen two claimants by the remedy given by the tribunals of the State where the property may be. It is not a controversy between two persons claiming the right to a thing, but the assertion by one person of a right of property in another, to be determined on principles peculiara to such relation."
​This shows, then, that the word "claim" should be construed in its more enlarged and ordinary acceptation, which is merely, as said by Judge Wayne, "an assertion by one person" of a right of property in anything, in the sense in which a man uses it when he says he 'claims' the clothes which he wears, the house in which he lives, or his horse which is running on the commons. This construction, which seems to be the only true one, does not imply any necessity for legislation to provide for the enforcement of a legal claim. And it is perfectly consistent with the position taken above, that the only "delivery up on claim" was to be, that when the slave resorted to the State laws to obtain his liberty, the tribunal resorted to, should, on proper proof, refuse to set him free, but "deliver him up" to the person claiming him, that is, asserting a right to him. And the word "deliver" does not necessarily imply anything more than merely allowing a thing to be taken. This is both its ordinary and legal definition. This construction accomplishes the design of the clause and prevents the State laws setting the fugitive free. The other goes far beyond this and makes the State become a positive instrument for the hunting of slaves.
The free States had possessed and exercised the right of manumission to the fugitives. The slave States asked them to surrender that right, and they consented to do so and not to interfere in the struggle between the oppressor and his victim. This is one thing. But from this to go so far as to exert the power of the State in hunting down the slave, is entirely another. And it is a thing which the free States never would have consented to in those days. Mr. Atherton, in the New Hampshire Convention, a portion of the debates of which are reported in the 2d volume of Elliot's Debates, while speaking of the provision prohibiting Congress to abolish the slave-trade prior to 1808, said: "We do not think ourselves under any obligation to perform works of supererogation in the reformation of mankind; we do not esteem ourselves under any necessity to go to Spain or Italy to suppress the Inquisition of those countries; or of making a journey to the Carolinas to abolish the detestable custom of enslaving the Africans; but, Sir, we will not lend the aid of our ratification to this cruel and inhuman merchandise, no even for a day. There is a great distinction in not taking a part, in the most barbarous violation of the sacred laws of God and humanity, and our becoming guaranties for its exercise for a term of years. Yes, Sir! It is our full purpose to wash our hands clear of it."
It is impossible to suppose, that people who held these sentiments, who were thus jealous of consenting to restrict, for a short time, the power of congress to abolish the slave trade, would ever have consented to this clause, if they had believed it would make them slave-hunters and active instruments in building up and preserving that system of oppression, which they thus bitterly denounced. The court, therefore, not only unjustifiably went out of the instrument to search for its intention in an historical investigation, but after having done so, it confined its view to one side, and assumed, as its intention, something which such an investigation does not warrant, and which the clause itself does not require.
I next propose to show that the reasoning of the Judges is based upon assumption, is unsatisfactory in itself, and that its various parts are in conflict with each other.
The opinion of the Court is delivered by Judge Story. It commences on page 698 of the 16 Peter's Report. It first states the facts, and then goes into a consideration of the clause of the constitution. It says the slave-owner, if left to himself, would be subject to many inconveniences, and meet with many obstacles in recovering his slaves.—From these facts it concludes that legislation from some quarter is necessary to protect his rights. The question then is, which is to legislate, congress, or the State government. This was the great question at issue. The Court takes it up on page 615, and disposes of it in the following manner:
"If, indeed, the constitution guarantees the right, and if it requires the delivery on the claim of the owner (as cannot well be doubted,) the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national constitution, and not in that of any State. It does not point out any State functionaries or any State action to carry its provisions into effect.
"The States cannot, therefore, be compelled to enforce them: and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the States are bound to provide means to carry into effect the duties of the national government nowhere delegated or intrusted to them by the constitution. On the contrary, the natural if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution. The remarks of Mr. Madison in the Federalist, (No. 43,) would seem in such cases to apply with peculiar force. 'A right,' says he, 'implies a remedy; and where else would the remedy be deposited, than where it is deposited by the constitution?' meaning, as the context shows, in the government of the United States."
It seems difficult to believe that such reasoning as this emanated from so high a source, as the Supreme Court of the United States. It is submitted that from the beginning to the end, it begs the question at issue, and assumes in almost every sentence, that the constitution gives congress the "right," or "imposes on it the duty" to legislate in this matter, when that is the very point to be proved. In the first sentence it asserts that if the constitution guaranties the right and requires the delivery, "the natural inference certainly is that the general government is clothed with the appropriate authority and functions to enforce it." But assertion is not argument. And it certainly was a point of sufficient importance to be worthy of some reasons showing why such was "the natural inference." If the constitution requires the States to deliver, then it certainly is not the natural inference that congress has any such power. And where a clause assumes, as does this clause, to regulate State legislation, and prohibits certain things, and commands others in the same sentence, it would seem to be the natural inference that the same power which was prohibited from doing the one, was commanded to do the other, for the manifest reason that no other power is spoken of at all. The State power is expressly mentioned. It is competent to discharge the duty imposed. Chief Justice Taney says the words "seem evidently designed" to impose the duty upon the State. Mr. Webster said such was "the import of the passage." To infer, then, that another power not mentioned is to perform this duty, seems to be an unnatural and not a "natural inference," and one that requires very strong reasoning and proofs to substantiate it. The bare assertion of the court, therefore in contradiction to the natural import of the words, can be entitled to no weight.
The next sentence seems to be quite as clear, and just as applicable to the point, as the observation of Hudibras, that—"statute laws are statute laws." The court gravely tells us, that "where the end is required, the means are given; and where the duty is enjoined, the ability to perform it, is contemplated to exist on the part of the functionaries to whom it is entrusted." These are certainly very luminous propositions, and such as nobody ever would dispute. But the question was not whether where an end is required of a certain power, that power has the means to accomplish it, or where a duty is entrusted to a functionary, whether he has the ability to perform it, but it was as to what power the end is required of, and to what functionary the duty is entrusted. And this being the question, the observation of the court seems about as satisfactory as it would to say that two and two make four.
It then says, "the clause is found in the national constitution, and not in that of any State." What of that?—That proves nothing. The national constitution regulates both the legislation of the General and of the State Governments. The fact, therefore, that a clause is found in it alone, raises no inference at all that it relates to the national government only. But that is to be determined by examining the clause itself. And when we do this, we find that although it "be found in the national constitution and not in that of any State," yet it speaks only of State legislation, and not at all of national. And this raises a strong inference that the State was the power designed to legislate in this matter, while the other raises none at all that the national government was so designed. It says further—"It does not point out any State functionaries, or any State action to carry its provisions into effect." Neither does it point out any national functionaries, nor any national action to carry its provisions into effect.—And if that raises an inference against the State power, it raises the same against the national. The next sentence proceeds:
"The States, therefore, cannot be compelled to enforce ​them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the States are bound to provide means to carry into effect the duties of the national government, nowhere delegated or entrusted to them by the constitution."
To the first part of this sentence we say, neither can congress be compelled to enforce the provisions of this clause. In the last part the court again assumes the point in issue, to wit, that this duty is one of "the duties of the national government." The next sentence is one which it seems astonishing that a court like that could have uttered. It shows either that it did not comprehend the point at issue, or that it believed others could not comprehend it. It says:
"On the contrary, the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution."
What an important discovery! What a triumph of logic! The supreme court of the United States, by dint of labored reasoning, has arrived at the profound "conclusion that the general government should filfil all the duties imposed on it by the constitution, unless the constitution positively forbids it to do so!" It seems to think that the instrument might very naturally contain such a prohibition, but in the absence of such a one, then the court considers it quite clear, that the general government sho'd fulfil its duties! As though somebody had been urging before it the converse of that proposition, and claimed that the general government ought not to fulfil its duties! whereas, the only only question was as to what its duties were, and not whether it ought to fulfil them, for the negative of the latter question no man would assert. When, therefore, the highest court in the nation, on a great constitutional question before it, coolly assumes the point in issue, and offers to the world, instead of reasoning, common-place truisms, in no way applicable to the point, and about which there is no dispute, "the natural if not the necessary conclusion" is, that the proposition it maintains is not susceptible of a reasonable support.
The last sentence in the above extract seems to be not only a specimen of false reasoning, but also of disingenuousness. It quotes from Mr. Madison the following remark, which it says applies "with peculiar force." "A right," says he, "implies a remedy: and where else would the remedy be deposited, than where it is deposited by the constitution?" And the court adds—"meaning as the context shows, in the government of the United States." Now, the question before the court was not as to whether "a right implies a remedy," but where the remedy was deposited, and consequently the latter part of the quotation from Mr. Madison, was the only one applicable to the point. And when the court asserts that his "meaning" was that the remedy was "deposited in the general government," it seems to have designed to convey the impression that the remark of Mr. Madison was made in reference to the fugitive clause under consideration. For if not, then what matter was it what his meaning was?—If Mr. Madison only meant that the remedy to some right was deposited in the general government, would the court therefore infer that the remedy for all rights was deposited there? It must either have designed to make this wild and illogical inference, or else to have represented Mr. Madison as speaking of this clause. But when we turn to the Federalist, No. 43, we find that the remark quoted by the court, was made in reference to that clause in the constitution which says that "The United States shall guarantee to every State in the Union, a republican form of government, &c." Here the constitution expressly deposits the remedy in the general government. The quotation of the court, therefore, was either disingenuous to Mr. Madison and the public, or else it had no more bearing on the point than would the quotation of the hundredth psalm.
This extract has been given and examined sentence by sentence, to show how unfairly the court assumes the point to be proved.
Another instance, on page 618, shows further its deliberate unfairness, or else its incapacity to understand the force of an objection. It says:
"But it has been argued that the act of congress is unconstitutional, because it does not fall within the scope of any of the enumerated powers of legislation confided to that body; and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this—that although rights are exclusively secured by, or duties are exclusively imposed upon the national government, yet, unless the power to enforce these rights, or to execute these duties, can be found among the express power of legislation enumerated in the constitution, they remain without any means of giving them effect by any act of congress."
The last part of this extract is either a wilful or ignorant misrepresentation of the objection. It says the objection is made "although the duties are exclusively imposed on the national government." That is false! Nobody ever made such an objection. It is a "man of straw" raised by the court. The real objection is that the duty is not imposed on the national government," either "exclusively" or at all. The moment it is shown that any duty is imposed on the national government exclusively, then it is admitted on all hands that that government possesses all the powers necessary to the performance of that duty. The objection is that the duty does not belong to congress at all. The court most unfairly states and argues it as though it were admitted to belong to it, and then objected that congress could not execute it for want of express words granting it the power to do so.
To such miserable perversions is it driven when it seeks to constitutionalize a usurped power.
The reasoning is unsatisfactory in itself. It is so because it is based upon assumption, as already shown.—It is unsatisfactory because it is forced, captious, and unnatural. Take, for example, the following specimens, in which it is argued that the States cannot legislate for the delivery of fugitives from labor, because the trial under a State law to determine whether the person claimed really owed service or labor, would necessarily occupy some time, and be a discharge pro tanto, from service, under the State laws, and consequently against the design of the constitution. On page 612 the court says:
"The slave is not to be discharged from service or labor, in consequence of any State law or regulation. Now certainly without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any State law or State regulation which interrupts, limits, delays or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates pro tanto a discharge of the slave therefrom. The question can never be, how much the slave is discharged from; but whether he is discharged from any, by the natural and necessary operation of State laws or State regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right."
The court says this is not "indulging in any nicety of criticism upon words!" This remark must remind us of the old saying that the wicked flee when no man pursueth.
Judge Wayne, in the opinion delivered by him, takes the same position. On page 646 he says:
"If, then, in a controverted case, a person charged as a fugitive, shall be discharged under a remedy legislated by a State, to try the fact of his owing service or labor, is he not discharged under a law or regulation of a State? It is no answer to this question, to say that the discharge was not made in virtue of any law discharging the fugitive from servitude, and that the discharge occurred only from the mode of trial to ascertain if he owed service and labor. For that is to assume that the provision only prevented discharges from being made by the States by enactment or law declaring that fugitive slaves might be discharged. The provision will not admit of such an interpretation."
On page 648 the same Judge says:
"Would not a postponement of the trial of a fugitive owing service or labor for one month, be a loss to the owner of his service equivalent to a discharge for that time? And if a State can postpone by legislation, the trial for one month, may it not do so for a longer time? And whether it be for a longer or a shorter time, is it not a discharge from service, for whatever time it may be?—It is no answer to this argument to say that time is necessarily involved in the prosecution of all rights," &c.
Now, a more strained and unnatural construction it would seem impossible to place on any constitutional clause. The constitution says the fugitive shall not be discharged from service by a State law, but shall be delivered up. The court says that if the State legislates expressly to cause him to be delivered up, that is a violation of the constitution, because time would be spent in ascertaining if he owed service and labor, and that he would be so far discharged. As though the design of the constitution was to save to the slave-owner the time spent in asserting his claim, notwithstanding it requires him to make the claim. Could not the court see that the same ​objection would exist against the legislation of congress? Judge Wayne says on page 645, that one great object of the constitution was "that all kinds of property, as well that which was common in all of the States, as that which was peculiar to any of them, should be protected in all of the States, as well from any interference with it by the United States, as by the States." If, then, it is a discharge from service and labor, for the States to legislate a mode in which the claim shall be asserted, it is equally a discharge for congress to legislate the same thing. For if congress can legislate on a matter at all, it certainly can provide for an appeal from one tribunal to another, or a postponement of the trial, and consequently, according to the reasoning of the court, it can discharge fugitives from service; a tact which slaveholders would not admit, and in direct contradiction to what Judge Wayne says was "a great object" of the constitution. He asks "if in a controverted case, a person charged as a fugitive, shall be discharged under a remedy legislated by a State to try the fact of his owing service or labor, is he not discharged under a law or regulation of the State?" No! Most emphatically not. That is, he is not discharged from service. It may be a discharge of a free man from the custody of one who has no right to hold him. But it is because he is a free man, and does not owe service, and consequently does not come within the constitutional requirement. And to pretend that such a discharge, under a State law, on the ground that the man was a freeman, and not a slave, was the thing designed to be prevented by the constitution, is a monstrous absurdity. Such discharges may take place, and have taken place, under the laws of congress. Yet there is quite as much evidence to show that the slave-owners did not intend to grant congress the power to discharge their slaves from service, as that they desired the Free States to surrender that power.
The constitution forbids the States to pass laws "impairing the obligation of contracts." But that they may not pass laws and establish tribunals to enforce them, nobody would for an instant pretend. Yet just as good an argument could be made in favor of such a statement, as that of the court now under consideration. The State law provides that the trial for the enforcement of a contract may be postponed, and appealed from one tribunal to another. Is not that impairing its obligation pro tanto? Precisely as much as a postponement or appeal in the case of a fugitive, would be a discharge from service. And if the court, in a case brought to enforce a contract, should decide that no contract existed, it would be just as much impairing the obligation of a contract by a State law, as to discharge from custody a person claimed as a slave, on the ground that he was free and not a slave, would be discharging a person held to service. In the one case the obligation of a contract would not be impaired, because there was no contract. In the other a slave would not be discharged from service, because no slave was before the court. The only discharge would be that of a free man from illegal restraint.
The fact that time is necessary for the investigation of all rights, is a complete answer to this forced construction, the assertion of Justice Wayne to the contrary notwithstanding. For it shows conclusively that the object of the clause was, not to save the time of a trial, but to prevent the State from setting free one, who, after a trial, was confessed to be a slave. Time must always be consumed in determining the question whether the person claimed owes service or not, and this whether the remedy is legislated by the State or national government.—And he is not discharged from service during that time, by the law, in either case. He is not discharged from actual service, because he had himself escaped from that, and is brought before the court by the master, to ascertain if he shall be taken back. He is not discharged from the obligation to serve, because the law under which the proceedings are had, commands the enforcement of the obligation so soon as it is proved to exist. The time spent, therefore, under any law, to ascertain if an obligation exist, in order to enforce it, if it does exist, is not a discharge pro tanto from the obligation, by the law; but is a withholding of a legal remedy, arising from necessity, until it can be ascertained if the case be one to which the remedy properly applies. The court, therefore, in advancing so far-fetched and strained a construction, has, without furnishing any valid reason to sustain its position, only exhibited a wanton and ferocious haste to hurry men into bondage, without time to inquire whether they were bond or free.
The reasoning is also unsatisfactory because it is chiefly found on convenience, and that not a convenience for preserving liberty, but for maintaining slavery. Whoever reads the opinions in this case, will see that the chief argument to sustain the right of congress to legislate, is, that it would be more convenient for the slave-owner, than it would under State legislation.—If there is any force in the views already presented as to the object of the clause, this argument must be entirely unsatisfactory to the people of the free States. They may reply that the object was not to devise the most convenient and speedy way to re-capture fugitives, but simply to consent to not interfere and set them free by law. They may reply further that the argument from convenience is not for a court to use, but for the legislature; that the court is to decide not what would be the most convenient law, but what is the law! They may reply further that if the argument from convenience were a legitimate one, there are other people in the nation besides slave-owners, and other interests besides slavery. And that if the convenience of slave-owners required congress to legislate to preserve slavery, the convenience of freemen required the States to legislate to preserve their liberties. And their present condition makes manifest the truth of this. Congress, under the control of the slave power, in its eagerness to grasp the slave, has trampled down the freeman. It has overthrown the writ of habeas corpus, the trial by jury, and the constitution, and left the people of the free States liable, at any moment to be made slaves by the decision of a court commissioner. This is boldly admitted by those Judges who sustain the law, as I shall hereafter show. And the people of the free States hold their liberties, not by the boasted safeguards of the constitution, but only by the honesty of bribed commissioners, and the veracity of interested and professed slave-hunters! By as much, therefore, as it is more important to preserve the liberties of freemen, than it is to perpetuate the slavery of slaves, is the argument of convenience stronger in favor of State, than national legislation, in this matter. But the supreme court on this point, as on all others, has paid no regard to the interests or convenience of liberty.
The reasoning is further unsatisfactory because it seeks to justify the exercise of this power by congress, from the fact that it has exercised another power, claimed to be of a similar nature, that of legislating for the surrender of fugitives from justice. The constitutionality of this latter legislation they say "has never been questioned." That fact, however, does not prove its constitutionality. The court admits that it "is not so readily susceptible of being brought into controversy in courts of justice," as the law for the re-capture of fugitives from labor. In truth, no instance is given in which it ever was thus brought into controversy. The object, the administration of justice and the punishment of crime, was one in which all the States and the world are deeply interested. And it was natural that the State executives, influenced by this consideration, and in obedience to the positive command of the constitution, should generally have surrendered up fugitives from justice, without inquiring very rigidly as to the authority of that legislation, which regulated only the manner in which it should be done. But if this legislation is to be used to justify the other, it will occasion its rightfulness to be inquired into. And when this is done, the same objections exist against the exercise of the one power, as of the other, by congress.—There is no express power granted to it to legislate for the surrender of fugitives from justice; neither is it necessarily incident to any express grant. And it is believed that the supreme court has recognized a principle, which destroys the constitutionality of that law, if carried out. That principle is that the general government cannot vest any of its authority in State officers. The court established that principle in the case of Martin vs. Hunter's Lessee, 1 Wheaton, 304. The same doctrine is also taught in the 3 Story's Commentaries, 114, 115, 386, 683.
These authorities were referred to by Mr. Johnson, Attorney General of Pennsylvania, in the Prigg case. And the doctrine was substantially admitted by the court in that case. Now apply that principle to the law of '93 for the surrender of fugitives from justice. That law requires the State executive to cause the fugitive to be arrested and given up on demand. This is clearly in conflict with the principle, because it vests authority in, and requires the action of a State officer, and that officer the highest. The court argued against the power of the States to legislate for the re-capture of fugitives from service, on the ground that they could not be compelled to exercise it. It was not a good argument, because the same objection existed against the power of congress. It is ​conceived that no legislative body can be compelled to legislate unless it pleases. But to the law of congress for the surrender of criminals, a valid objection exists, and that is, not that congress could not have been compelled to legislate, but that after legislating it is unable to enforce the law. Suppose the State executive refuses to deliver up the criminal on a requisition? How can congress compel him to act? Not at all! The national Judiciary has established the principle that State officers are not responsible to the national government. And therefore the State executive may surrender the criminal on demand, or not, just as he pleases. And they have in several instances refused to surrender, and yet no attempt was ever made to compel them. And this shows the necessity of having the State legislate in the matter, so that the officer who is to execute the law may be held to some responsibility. And as a matter of practice the States do legislate upon it. We have a statute in this State prescribing the manner in which fugitives from justice shall be delivered up. And the act of congress on that subject stands as a dead letter, creating no more obligation than existed without it, from the requirement in the constitution alone.
It was strongly urged by the court that the contemporaneous exposition of the framers of the constitution, was in favor of the legislation of congress. But the fact seems to be equally strong in favor of the other side, that in both of those laws the execution was entrusted almost entirely to State officers. That fact shows that they considered the State, after all, to be the party that was to deliver up. And that being established, it follows, from the principle just referred to, that the manner of doing it should be legislated by that power to which the officers are responsible, so that its execution may be enforced.
The principle itself, and the fact that the law of '93 was in violation of it, are expressly admitted in the opinion of Justice McLean. On page 664 he says:
"It seems to be taken as a conceded point in the argument, that congress had no power to impose duties on State officers, as provided in the above act. As a general principle this is true, but does not the case under consideration form an exception? Congress can no more regulate the jurisdiction of the State tribunals, than a State can define the judicial power of the Union. The officers of each government are responsible only to the respective authorities under which they are commissioned. But do not the clauses in the constitution in regard to fugitives from labor and from justice, give congress a power over State officers on these subjects? The power in both cases is admitted or proved to be exclusively in the federal government."
And then, in the same manner, as it had been sought to justify congress in legislating for the re-capture of fugitives from labor, on the ground that it had legislated for the surrender of criminals, Judge McLean attempts to justify it in imposing the duty on State officers in the one case, because it had done so in the other; or in other words, he seeks to justify one unconstitutional act by another. After referring to the 1st section of the act of '93, relating to fugitives from justice, and pointing out the great fact that it made it the duty of the State executive to cause the person demanded to be arrested, &c., and saying that this had never been questioned, he proceeded to ask:
"Now, if congress may, by legislation, require this duty to be performed by the highest State officer, may they not, on the same principle, require appropriate duties in regard to the surrender of fugitives from labor? Over these subjects the constitutional power is the same."
It is so clear, then, that this law is in violation of a plain principle established by the court, and also by reason, that Judge McLean is compelled to admit it. And in what way does he get rid of the difficulty? He asks very innocently if this law "is not an exception" to the rule. Why did he not answer his own question? Why did he not show some reason why this was an exception? Why congress could legislate on these subjects in a manner directly in violation of those principles which govern its legislation on all others? Why did he not do this, except it be that no such reason existed? He asks:—"But do not the clauses in the constitution in regard to fugitives from labor and from justice give congress a power over State officers on these subjects?" No! They do not! If you assert they do, show it! You have been compelled to go out of the constitution in order to raise a pretence that they give congress any power at all! Where, then, can you find the power for it to act in a manner in which it could not act, to promote a purpose, the power to promote which was expressly granted to it in the constitution? It cannot be found. And not a shadow of an argument has been, or can be offered to justify the pretence that this case is an exception to the established principle. There is no possible reason why, if congress has power over State officers on these subjects, it has not power over them on all others. The law for the surrender of criminals, therefore, instead of furnishing any support to the other, furnishes the contrary. For it is liable to the same objections, and brings additional evidence that congress regarded the State as the proper authority to execute the requirement of the constitution. And that fact being established, it follows, as already remarked, from the principle that the State officers are not responsible to the general government, that the State also should legislate, so that the law may be obeyed.
The reasoning is further unsatisfactory, because it is founded on a gross insult to the honor and good faith of the States. In order to lay a foundation for the right of congress to legislate, the court assumes that the States would violate the constitutional requirement. On page 623 it says:
"One State may require the owner to sue in one mode, another in a different mode. One State may make a statute of limitations as to the remedy in its own tribunals, short and summary; another may prolong the period and yet restrict the proofs. Nay, some States may utterly refuse to act upon the subject at all; and others may refuse to open their courts to any remedies in rem, because they would interfere with their own domestic policy, institutions, habits," &c.
Judge McLean also said on page 662:—"If the effect of it depended, in any degree, upon the construction of a State by legislation or otherwise, its spirit, if not its letter, would be disregarded." And the same position was assumed all the way through. Now to suppose the States could not understand the spirit of the constitution, was an insult to their intelligence. To assume that, understanding it, they would refuse to obey it, after having entered into a solemn obligation, and taken a solemn oath to do so, was an insult to their honesty and good faith. And they were both insults which the national court had not right to offer. And having offered them, and made them the basis of its reasoning, the insulted States have a right to reject that reasoning, as resting on an unsound foundation.
The court intimates that it would have been a great want of wisdom in the framers of the constitution, to have left the States to legislate under these clauses, because they were the parties to be bound by them. There is no force in this intimation. It was the doctrine of many of the most prominent men who framed the constitution, that it was a compact between the States, as independent sovereignties. That is the doctrine of the Virginia and Kentucky Resolutions endorsed by the Democratic Party. That some of its provisions are matters of compact between the States, is evident, and has been admitted by the Supreme Court. Now, in all cases of compact between independent sovereignties, there is nothing to rely on for the fulfilment of the obligations imposed, but the integrity and good faith of the parties. Therefore, for the States joining together in a union, to have manifested the same confidence in the honesty and good faith of each other, that nations always manifest in each other, who are not joined in any union, would have afforded no reason to impute them a want of wisdom or foresight.
The reasoning is further unsatisfactory, because its various parts are in conflict with each other. The opinion of the court is delivered by Judge Story. In that it is contended, not only that congress has the power to legislate, but that this power is exclusive. Five of the other Judges deliver separate opinions, and one, Justice Baldwin, concurred with the judgment for a special reason, "but dissented from the principles laid down as the grounds of the opinion." Three of the Judges, Chief Justice Taney, Justice Thompson, and Justice Daniel, in their opinions, deny that the right is exclusive in congress, but urge strongly that the States have also a concurrent right to legislate on the subject. Chief Justice Taney delivered a very able argument in favor of this position.—His remarks on this point have already been quoted, showing that the very words of the clause "seem evidently designed" to impose the duty on the States to legislate. Their arguments to prove this cannot be answered. But all those arguments are directly in conflict with the idea that congress has a right to legislate, and with all the arguments urged in favor of that right.
They who assert the right of congress, do so only by pretending that the words which say the fugitive "shall be delivered up," are addressed to the national Government. When, therefore, Chief Justice Taney and those who contend for the concurrent right of the States, prove that ​those words were addressed to the States, they destroy all foundation for the right of congress. There is a direct conflict between their reasoning and that in the opinion of the court.
It will be remembered that much is said about the argument drawn from contemporaneous construction. They who use this argument, continue their view entirely to the contemporaneous construction of Congress, and overlook that of the States. Now it appears from these very cases, that a number of the States, among which were New York, Pennsylvania and Maryland, regarded this as a matter to be controlled by the States, and passed laws in good faith to carry this clause into execution. Thus showing how baseless was the assertion of the Court that they would not execute it. The contemporaneous construction of the States was in our favor, and that of Congress as much for as against us. The opinion of Chief Justice Taney sustains this position. He says that the construction placed on this clause by the Court, "had not entered the minds" either of Congress, or of the States, when the law of '93 was passed.
(Mr. Paine here read at some length from the opinion.)
The court contended that if this matter was left to the States, the remedy would fail. Chief Justice Taney claims that unless States may legislate, the act of congress would be entirely ineffectual, and "scarcely deserve the name of a remedy." He cuts up root and branch the reasoning by which the court sustains the power of congress! yet he concurs in the opinion that congress has the power. By what other process of reasoning, different from that of the court, he arrives at the same conclusion, he does not explain. He concurs in the reasoning of the court, so far as to give congress the power, and then overthrows that reasoning so as to retain the power in the States. He seems to have supposed that the clause was addressed to both governments, and that both state and nation, were bound to use all diligence in hunting fugitive slaves.
Three of the Judges contend for the concurrent right of the States. One dissents from the reasoning in the opinion of the Court. It leaves, therefore, a bare majority of one in favor of the exclusive right of Congress. Now take the following extract from the opinion of Judge McLean, on of that majority, and see what strange inconsistencies they fall into in supporting their opinion. On page 660, he says:
Does the provision in regard to the reclamation of fugitive slaves vest the power exclusively in the general government? This must be determined from the language of the constitution and the nature of the power.
"The language of the provision is general. It covers the whole ground, not in detail, but in principle. The States are inhibited from passing 'any law or regulation which shall discharge a fugitive from the service of his master,' and a positive duty is enjoined on them, to deliver him up, 'on claim of the part to whom his service may be due.'"
He then proceeds to argue that the power is exclusive in congress. After asserting that the constitution "enjoins a positive duty on the States," to deliver up the fugitive, he immediately contends that they have no power to deliver him up. How a Judge of the Supreme Court of the United States could assert such a plain and apparent contradiction, it is difficult to comprehend.
There are then three Judges who claim a right in the States to legislate, one who dissents from the reasoning of the Court, and one of the five others who declares that the Constitution "enjoins a positive duty on the States to deliver up the fugitive." There seems to be about as strong support, therefore, as far as numbers are concerned even, for the opinion that the States have a right to legislate, as there is for the opinion that the right is exclusively in Congress. And when it is shown that they have a right, it follows that they have the whole right, for, as already said, the very reasoning which proves their right, destroys the right of Congress.
Such are the reasons by which the supreme court sustains the law of '93, with one exception. They say that the case of a fugitive is a case arising under the constitution, and consequently comes under the judicial power of the United States. And that therefore congress may legislate so as to carry the judicial power into effect.
After all its reasoning to show that congress had the power by virtue of the supposed intent of the clause itself, it makes one attempt to bring itself within the old rules, and to show that this power is incidental to the vesting of the judicial power. The attempt is clearly far-fetched, and by its circumlocution is a tacit admission that there was no other way to sustain the power. But that the fugitive act is "necessary and proper" to the vesting of the judicial power, cannot be maintained. If this were a case to which the judicial power extends, congress might prescribe the manner in which the case sho'd be brought before it. That is all that is necessary to the vesting of the judicial power. But the act goes far beyond this, giving remedies against individuals, inflicting penalties, and enacting many other provisions, that are not in the least necessary to the vesting of the judicial power, or at all connected with that subject. The judicial power of the United States extends to suits between citizens of different States. It would extend to an action of ejectment brought by an owner residing in another State. Congress, in order to vest the power, may prescribe how the case shall be brought before the court.—But would that give it the power to punish criminally a party who had committed and injury to the property, or to give to the owner a right of action against him for a penalty? Clearly not. Yet such a power would seem to be just as necessary to the vesting of the judicial power, as does a large part of the Fugitive Act.
But I think the true answer to this argument is, that so far as the proceedings of the owner are concerned, that a fugitive case is not a case at law or equity arising under the constitution, to which the judicial power extends, at all. What I have already said on the meaning of the word "claim," in this clause, goes to show this. The only kind of judicial proceedings contemplated by the clause, seems to be a resort by the fugitive to State laws, to obtain his liberty. The prohibition on them to discharge him, was the chief object of the clause, and the requirement of delivery, naturally follows it, meaning no more than that the state tribunals, after proof that the person claimed, was a fugitive, should not interfere with the possession of the owner, but allow him to take the fugitive away. I believe this was the only delivery ever contemplated. No case at law arises under the constitution in the proceedings of the owner. It is like the owner of a horse running at large. . He may seize the animal wherever he finds it. But he cannot sue it. He cannot begin a "case at law" by which this horse is to be caught. Let it not be supposed that by this comparison I intend to sanction the idea that a man can be the subject of property like a horse. God forbid! I only wish to argue it on the footing on which the slave laws place it. In the same way the owner is in pursuit of his property, not detained from him by any body whom he can sue, but running at large on its own responsibility. The courts have decided that he may seize it wherever he finds it, and this seems plain enough, admitting it to be property. If this right of property is secured by the constitution there is no reason why he should not take it away as soon as he gets possession, except the protection of the people of the state. This requires that the state should have the right to prevent him from doing it, until he had given the person claimed, an opportunity to sue out a writ de homine replegiando, to test the question whether he was a slave or free. This was the provision of the New York law on this subject. Under this view of it, no case at law arises under the constitution. When the person claimed sued for his freedom, it would be a case arising under a state law. It could only be brought before the judicial tribunals of the United States, by virtue of their appellate jurisdiction, when it was claimed that the state law discharged the fugitive in violation of the constitution. It would go up in the same manner as a case, where it was claimed that a state law impaired the obligation of a contract.
I have now finished my examination of these decisions, and have shown, as I think, that the reasoning by which this power is attempted to be sustained, entirely fails. If it be true, that the reason of the law is the soul of the law, according to its own maxim, then in my judgment the decisions that have sustained this power, fell still-born from the lips that uttered them, and were never animated with the breath of life. And this Fugitive Act stands out in all its horrible deformity, originating in usurpation, a fit source for so monstrous an offspring.
The court here adjourned until Tuesday at 10 o'clock.