New-York daily tribune. [volume] (New-York [N.Y.]) 1842-1866, 1851-01-29

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States" Before it could be made such by any
possibility, there must be some action on the part
Of these citizens, the in respect 70 the other
and then, the controversy would respect the a.
ton, and not the Fugitive Slave.
/ .. Is il included in controversies " befcesR q
| STATE and citizens Of another State" In a suit
instituted under this clause, the State would be
on the record OF the court as one party. and the
citizen or citizens of another State the other
party This would necessarily be the form Of the
suit. This suppOses a claim on the part Of the
+ one agains. the other-thet the one sues, or is
sued by the other. Now the claim Of the owner
/ for the rendition of Fugitive Slave, IS not con.
troversy between State and citizens OF another
State" in any possible sense unless the owner
has presented his claim, and the State has re-
fused to obey the injunction OF the Constitution,
and then the controversy respects not the slave,
but the rcfgSQi-the unconstitutional action on
the part Of the State. The State is no party
merely because the slave has come within Ms
jurisdiction. Ii must first act in It's political capa
city and if it obeys the Constitution, then there
is no controversy II it does not, then the refusal
is the subject of the controversy. Hence, this
clause bestows no judicial power in the first in
stance, TO decree the rendition OF the Fugitive
Slave.
g. Is it included in controversies 5etreen tro or
more StateS?" Plainly not; for the claimant Of
the Fugitive Slave is not q State, but private
citizen The State in its political capacity does
IL
unless it be the party owning him and hence,
as such is not party. The claimant does not
represent the authority of the State. He repre-
sents only his right OF private property under tho
laws of the State. II, moreover, the State from
which the slave Aed, were party, the State into
which he had escaped, could not be, until the
former had prosecuted its claim and the latter had
denied il and then the deRiai would be the mat
ter of controversy to be adiudicated by the Ma
tional Judiciary. Here then, is no grant Of power
to this Judiciary, to do the work of delivering up
Fugitive Slaves
4. Is it included in " cases IN lav ami eqnty
01Tsing uRder ms Constitution The lars OF the
United States, and treaties made SC 1t is not
q case arising under treaties Is it a case
arising under "the laws Of the United States
Judge Story remarks, that eases arising under
the lars OF the United States are such as grow
out OF the legislation of Congress. within the
scope of their constitutional authority, whether
they constitute the right or privilege, or claim, or
protection, defense, in whole or in part, OF the
party by whom they are asserted In order
then that the delivery OF the Fugitive Slave may
be a case before the Federal Judiciary under the
laws of the United States Congress must first
have constitutional power 10 make laws on the
subject. not deriving that power from the express
powers of the judiciary. The power OF Congress
to make it a case under 1.-THE laws of the United
States, is the starting point and II 1t has no
such power independent OF the Judiciary, then
the delivery Is not q case uuuCt JuIis-
dcton of that Judiciary. The Legislative power
of Congress cannot therefore, be drawn from the
judicial power touching cases, arising under the
laws ofthe | nited States since the Judicial power
in all these cases grows out OF the constitutional
legislation OF Congress. Aside from tins eglsla.
ton there is no case for the Judiciary and II TINS
logisla,;on il not within the scope OF constitu'
tional authority, then there Is no case unless 1t
be the constitutonality of the legislation itself -
We have already shown that Congress has no
-. 70 fha folv ~
Fugitive Slaves, unless it be in the grants made
to the Judicial Department-the veryquestion we
are now considering. Hence, it derives no such
power from that class OF cases assigned to the
Federal Judiciary that arise under the laws OF
the United States since all these cases assume
the leeisl alive power Of Congress.
But is not the legislative power of Congress
involved in the assignment TO the Judiciary OF
"dik cases az Tar and equity arising under MiS
Constitution ?" Let us look at this question
What is a case in the sense of this clause -
Judge Story remarks " 1t is clear that the Ju
dicial Department is authorized to exercise ju-
risdiction to the fall extent OF the Constitution,
laws and treaties Of the United States, whenever
any question respecting them shall assume such
form, that the judicial power is capable OF acting
upon it. When it has assumed such form, 1t
then becomes case; and then, and not till then,
the judicial power attaches to it. case, then,
in the sense of this clause OF the Constitution
arises when some subject touching the COnstltu
tion, laws or treaties of the United States, is
submitted 20 the courts by party, who asserts
his rights in the form prescribed by law
What then are leases in law and equity arising
under this Constitution" as distinguished from
those that arise under "tbe avs OF the United
States or treaties made Judge Story answers
that they " are such as arise from the powers
conferred or privileges granted, or rights claimed,
or protection secured or prohibitions contained
in the Constitution itself, independent of any
particular statute enactment He gives exam
pies. Thus, if a citizen OF one State should be
denied the privileges OF a citizen in another
State; if State should coin money, or make
uapcr money tender: If person. tried for a
crime against the United States, should be denied
a trial by Jury, or a trial in the State where the
crime is charged TO be committed If a person.
held 10 SeTUce or labor IN STATE UHder the lars
thereof should escape into another, and there
should be a refusal 10 deiiUer HIM mp 10 The party
10 trhom such serUice or labor may he dHe; in
these, and many other cases, the question TO be
iudicially decided, would be arising under
the Constitution Such cases imply no grant of
power to Congress to egisate in regard To them
they are created by the Constitution ITSELF and
may be brought before the Federal Judiciary
without legislation. The case of Fugitive Slaves
is mentioned as one of these cases. In what
form Not as growing out OF legislation neither
Is implying that the delivery is the business OF
the Federal Government Ii is a case when
there is refusal to deliver him up and this
refusal is the case-"the question 10 be Judlclay
decided" In case Of the refusal, the decision of
the + federal Judiciary enforces the constitutional
Injunction when as q case under the Consultation
the subject is brought before the Judiciary. This
supposes that the thing itself that is to be done,
namely, the capture and delivery, il not commit
ted to the judicial department Of the General
Government Ii is a case under the Constitution
for IT'S consideration, when, and only when, there
is n "yefusaE TO comply with the injunction OF
the Constitution, and then the alleged refusal is
the matter to be judiciay determined. Here,
then, is no grant Legislative power to Congress,
10 create courts to do this work since the 1rOrk
aselfis not by the Constitution committed to the
JUDICIAL Department 1t is not case Tor its con
siderttion except in adjadicating upon an alleged
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