The national era. [volume] (Washington [D.C.]) 1847-1860, 1851-02-20
LETTER FROM HON. S. p. CHASE.

LETTER FROM HON. s. r. CHASE.
WASHINGTON CRY, January, IS, 1851.
GENTLEMEN: My engagements permit me to
give you in answer to your letter of the 18th,
summary only of my views of the subjects to which
you invite my attention.
AS long ago as the year 1887, it became my pro-
fessional duty, as one Of the counsel retained in
defence of an alleged fugitive slave, to give care
full examination to the provisions of the Constitu-
ton, and of the act Of l793 relating to fugtivcs
from service
The result Of that examination was thorough
conviction that that act was unconstitutional
and subversve of the first principles of civil lib
ertyD The argument then delivered was pub
lished, and the grounds Of my opinion are fully
stated in it. The act of 1850 is in my judgment,
more objectionable than the act Of 1893.
The radical objection of both acts is the total
absence of power in Congress TO legslate at all
upon the subject of escaping servants. The re-
ceived democratic principle of constitutional con.
struction. sanctioned by Jefferson Madison, and
Jackson, limits the powers Of Congress to those
expressly conferred and those necessary to carry
into effect powers 50 conferred on Congress ITSELF
or on some department or officer of the Govern
ment. The power to legislate in respect to fug-
tives from service is certainly not among the
powers expressly granted, nor is 1t necessary to
| to carry any of them into effect
| The only argument ever urged against this
view is, in substance this The Constitution con-
fers upon the courts Of the United States--the
Judiciary Observation-Disclosures Of all cases
arising under it the escape Of a servant from one
State into another and the pursuit Of the master
! constitute such case. Congress, therefore
under its authority to pass laws 10 carry into ef
feet powers vested In any Department, may pro-
vide by law for the exercise Of this jurisdiction
! by the courts and for the enforcement Of their
! decisions.
One fatal defect in this argument--not to men,
ton others--is that the escape and pursuit stated
do not constitute clse arising under the Consti-
tuition The fugitive servant clause stipulates
that the fugitive shall be delivered up on claim of
the party to whom the service may be due There
must then be claim, properly made by the
proper party, and denial Of that claim The
claim in my Judgment must be addressed to the
State within whose jurisdiction the alleged fug-
tive is found, through her regular authorities and
officers; and, before any case under the Consti-
tuition can arise, there must be refusal by the
State to deliver up, Notwithstanding the demand
and due proof of escape and service. II this be
a correct construction Of the clause-and it is
sanctioned not only by the obvious import of the
language used but by very high authority-it is
manifest that Congress cannot, constitutionally,
egislate on the subject for Congress cannot legis-
late to compel n State TO act or refrain from nc.
ton Its legislation must operate upon individu-
ais, not upon States.
II il remarkable enough that the act Is not con-
sistent with the only theory upon which it's con-
stitutionaity can be even plausibly defended
The power Of Congress to legislate Is claimed
solely upon the ground that its legislation is ne
cessary to carry into effect powers vested in the
courts But the act goes far beyond providing for
the execution of alleged powers by the courts 1t
assumes to confer judicial power upon commits
sioners The argument is, that Congress may
leeislate because the courts have jurisdiction and
legislation is essential to its exercise The legs-
lstion. in support Of which this argument s urged
proyides for the ex ercise OF this alleged jursdic
ton not by the courts merely, but by commission
crs-practicay indeed takes this jurisdiction from
the courts and vests II in the commissioners Can
theory and practice be more inconsistent Can
any legislation be more palpably unconstitutional
than that which assumes to confer Judicial powers
on these commissioners, whose appointment and
term of office are utterly incompatible with the
requirements of the Constitution, as to judicial
Appointments and tepures
cannot dwell upon other objections TO the act
it's indecent injunction Of summary proceedings
in matters Of vital importance and often of er.
IRENE complexity - its attempted abrogation Of
the writ OF haseds eorpns-its denial of trial by
inry-its bride Of double compensation offered for
decisions against liberty--its license to the manu-
facture of er yayis evidence for ts-ts dis
favor TO the production Of any evidence In behalf
Of the clamcd-its denuncation Of pains and PEN |
slties against acts of humanity and mercy--its |
command to the good citizens Of the |
free States TO assist in the business of slsve-cach
ipg--and it's charge, in certain cases, Of the ex.
penses of extradtion upon the national treasury |
These characteristics are appropriate enough
TO an act the very foundation OF which Is an i'm
putation Of bad filth TO the people Of the free
States. Every argument in its defence assumes
that the free States II ef to lesislate on the sub
ject will prove unfaithful to their constitutional
and therefore must not be allowed to
ascertain the true import Of the compact and pro-
vide for its execution by snch legislation as will
guard equally the just rights Of all
BY those who are satisfied that this act Is I'M
constitutional, II cannot Of course, be regarded "A
a binding enactment--for all courts decide what
common sense teaches, that legislative acts, IN
by the Constitution, are void. Still, 80
long as II remains upon the hitchcock attempts
10 execute II will be made and these attempts
should bs met In my Judgment. not by violence,
but by appeals 10 the Judicial tribunals The de-
cisions Of these, whether favorable or adverse,
must necessarily govern, until reversed the par.
lieular cases TO which they apply. But the Peo-
pie are sovereign we'll over courts as over legis
lsiures. and can form and reform both.