New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1851-01-16
...-1.. and ru.l,Ive slave.....No. V.

.his series we gave part Vi '"o "'o
~s;cb we base this opinion. Let us now cO"'
tinue it. ..-...,. chartered
..,.hl;sbment. deriving all its powers from 'ne
constitution and limited wholly to its grants
This was necessary, not to sWalio" Up ""T
vert the rights of the States on the one ua"u,
and vet ON the other, to create government VI
.nMc;ent mower for national purposes 10 nA
.h;, noint beyond all question: it is expressly &c.
I.,ad that ali mowers not delegated to the deners
<soverrment and not prohibited to the States, are
-o.a-red n the States respectively Hence FED
a.s1 l.o;.,.,;ou must lie strictly within the limits
81 ntsr.r.d mowers, or il is not authorized by the
Const;t,tiou. Congress has no more ri5n' ="
sro,ed those limits, than it has to contradict OF
nul,;fv an express provision Of the charter me
.yno,ent 4 passes beyond them, 1t invades tue
nowers reserved to the States respectively ana
..xpressy denied to the Federal Government
How then are the powers of Federal leglsla-
zion bestowed; and what are they! In Article |,
Section l. Clause l, it is provided that All
legisloiire powers herein granted, shall DC vested
inn Congress of the United States" These powers
are given by special clauses found In diiefeh'
.rts If the Constitution and referring In cypress
words 70 specifc subjects, and by the eighth Sec'
,;on Of the first article. The eighth section con-
,s;n eighteen distinct clauses. The first seven
teen state grants Of cypress power, describing so
many particular subjects in regard to which Con-
sress may legislate. The eighteenth and last
clause of the same section contains the grant Of
,nDlied powers 1t authorizes Congress " to
make all laws which shall be necessary and
proper for carrying into execution the JoreS0t"g
bowers, and all other powers vested by TINS Con
stitution in the Government oil the United states,
or any department, or Oiheer thereof. In regard
10 this clause on which are based the lmPted
powers of Congress- Judge Story remarks:
"Tbe plain import OF this clause is, that Con-
rress shall have all the incidental and a7sstTunae7t-
fdI powerS, necessary and proper to carry into
execution all the erPTesS PorerS. 1t neither en-
larges any power specifically granted nor is 1t
grant of any netc power TO Congress, Whenever,
therefore question arises concerning the Con
stitutonality Of particular power, the rst ques-
ton is, whether the power be expressed In the
Constitution If it be, the question is decided
II il be not expressed, the next inquiry must be,
whether il is properly an incident to an cypress
potceT and necessary TO ITS execution Ii 1t be-
then i. may be exercised by Congress. II not.
Congress cannot exercise il" Moulton's Constr
.eutional Guide, p. 43.
This gives the true rule for expounding the
grants OF power made in the Constitution. the
power be granted in e1psess words this ends the
question If it be not 80 granted, then two things
must be shown. First, there must be shown
somewhere in the Constitution the grant of an
enpYesS power TO the Federal Government
and the a. secondly, il must be shown that the
ooWer 20 be exercised is necessary as an INCIDENT
aor carving into execution that express power.
IL the argument fail on either point then tine
power claimed as being implied, is not constltu'
fional and cannot be exercised by Congress.
With these principles before u.s. let US see,
whether the Constitution bestows on Congress
any Legislature power IN respect 70 the capture
and delivery of Fugitive Slaves.
The first question is, whether this IS done Ill
sapreSs cords. 1t il not done in the first seven
teen clauses of the eighth section OF the first ar
ticle. which contain the foregoing powers re.
ferred to in the eighteenth clause. Not one OF
these foregoing powers has the remotest rela-
zion to the subject Of Fugitive Slaves Neither
is it done in any other clause OF the Constitution
which in cypress words makes grant of legtsla
tive power to Congress We look In vain for
such a clause, since none le to be found. Hence
there is cypress grant oil Legislative power
having reference to this subject. Here 1t may be
asked Is not the clause itself referring to Fugi
tive Slaves, an express grant OF legislative power
70 ConTess7 Let Us read 1t, and then Judge
" No person held TO service labor In one State.
under the laws thereof, escaping into an0tner,
shall ia consequence OF any law or reguletoh
therein be discharged from such service or LABOR
but shau be delivered up on claim of the party to
whom such service or labor may be due; NOW
will any man, in his sober senses. call this an &C
p1esS grant of legislative power 10 congress =
We ;lilk not. 1t does not appear from the pro-
vision that there is any such ieslsatNe oouy ~
The nation The only parties mentioned, are the
Fugitive Slave the legal claimant, and the states
The State from which, and the State INTO which
the slave has made his escape. The clause In e.
DreSS words O0nieTs no power on any legislative
body whatever; neither does It In express words
r
simpl, declares, that the Fugitive Slave shall not
be discharged, but shall be delivered up on claim
of his legal owner. IL clause had been added,
saying. Congress may pass any laws necessary
10 the execution of this provision, or using other
words to the same effect, then there would nave
been an srprcss grant OF legislative power. But
in the absence of such words, there is no such
vrant unless we assume what all other parts OF
the Consultation abundantly disprove that cypress
grants of legislative power are made where they
are not expressly mentioned. This would make
the national charter both strange and an sx-
ceedingly dangerous instrument. We lay 1t
down therefore, true proposition, that there
il no grant of power in reference to this subject
made in capreSS cords.
Failing to find an express power, we come to
the second questions Does the Constitution con
fer on Congress an implied power OF legislation
in the premises Remember that an implied
power is always drawn from an cypress power
being involved in it as an instrumental incident.
These express powers are bestowed on the three
departments Of the General Government-the
Legislative. the Executive and the Judicial In
then one OF the other OF these we must lind an
express power having reference TO the case OF
Fugitive Slaves before we can affirm the implied
power Of Congress 70 leeislate in the premises
Congress is one department of the Federal
Government and may therefore exercise such
implied powers as are necessary and proper Tor
carrying into execution any Of the powers er-
prcsslg granted to it. Ii may derive implied pow
ers from its own express powers. But, as we
have Just seen, Congress has by the Constitution
no cypress power of legislation in respect TO the
delivery Of Fugitive Slaves Hence, as one "de-
4 II 4 L u