The national era. [volume] (Washington [D.C.]) 1847-1860, 1853-09-01
SLAVE cAsE-JUDGE McLEANs OPINION


by Judge Mclean, of the United States ~
preme Court at Cincinnati, the facts OF tn
ease being clearly in favor of the claman
defence was taken by the counsel for the lug
tive, on certain law points, which the Judg
ruled against them. From the reported opln
ion we quote:
at has been urged that it has not beer
proven that Kentucky was slaveholding state
Judges of the Supreme Court of the Unitet
States recognise the laws of all the States, a
90 the State Courts the laws of each county
The jurisdiction of the Supreme Court OF thu
United States extends throughout the Unlor
and into the Territories Its Judges are pre-
sumed to know the laws of each State, ant
the extent of State jurisdiction ! do not say
that such would be the rule were this examn
alton before a State Judge, or Commissioner
of the United States.
" In many of the States a special law has
been passed, recognising the statute laws OF
other States In such cases, nothing more than
an exhibition Of the statute law would be ne
cessary But where trial like this is had IN
a State where no such provision exists, the
/ State Judge, and perhaps the Commissioner,
| might require legal proof of the existence OF
slavery in the State where the claimants re-
sided But this is not necessary before Judge
of the Court whose jurisdiction Is commensu-
rate with the whole country. Kentucky Is
known to be a slave State. Il
Incidental to the argument of another point
the Judge said:
at has been claimed that the STAKEHOLDER
had the right to take his slave into the Terri
tories where it was not legalized, and where
long usage had not sanctioned the institution.
Usage constitutes law, after a sufficient lapse
of time. But the Supreme Court has decided
the claim to be without foundation. Slavery
exists only by local law"
On the constitutionality of the Fugitive
Slave Laws of 1898 and lS5O-that is, on the
power of Congress to legislate upon the SUBJ
iect, he says:
~ will refer to the judicial authority that
has recognised the power of Congress to enact
laws providing for the return of fugitives from
labor. In the case of Prigg Us. the State of
Pennsylvania, the Judges of the Supreme
Court decided, without dissent, that Congress
had the power to legislate on this subject.
Some of the Judges thought the States had a
right to legislate on the same subject; but
there was no dissent from the decision that
Congress had the power to adopt the law OF
l7g3-the law of 1850 was not then enacted.
"The Supreme Court Of every State in the
Union, before which the question has been
raised, has recognised the same power in Con-
gress. At an early period in the history of
Massachusetts,, and possibly in other States,
though it has not attracted my attention, this
doctrine may have been doubted but it has
since been affirmed, and no court of respecta-
BILE standing now doubts it."
This construction ne enforces, or endeavers
to enforce, by the fact that I" those who en-
acted the law of 1898 were not ignorant of
any of the provisions of the Constitution for
they had been scanned with great ability, and
especially in Virginia"
This it seems to us, is giving too much effect
to contemporaneous construction by authorities
not Judicial, nor, rs it has appeared since in
this very matter, altogether judicious The
act of 1893 conferred upon the State magis
tratcs power to hear and determine fugitive
slave cases But it has since been decided owe
and over again by State tribunals that Con
grcss cannot give jurisdiction to State Court
or magistrates in any matter, and especially
cannot compel them to accept it, The Prigg
case itself asserts this doctrine and the Fug
tive Slave Law of 1850 altogether abandon.
the doctrine of 1898 in this respect. Here
was n palpable msconstruction of the Const
tuition, and an egregious mistake of it's philo
sophy and policy by these same contemporary
legislators, who "wcrc not ignorant of any Of
the provisions of the Constitution" as the
Judge has it,
With all due respect for the opinion Of the
learned and able Judge, We take leave to say
that the Constitution is not contract to be
construed by the intentions of the parties or
persons who made it. however gathered but
the intention of the instrument must be gained
from ITSELF from its own provisions and ue
are not bound by any notions, opinions, or
purposes, of its actual trainers for, we are
now for ourselves its subjects, objects, and ex-
positors.
Judicial construction is of authority with us
for reasons which have nothing to do with ex
ira, judicial notions and intentions concerning
it. We think, therefore that the Judges aux
| Hilary argument in this matter is wrong in
principle, and in this particular case very par
ticulary unfortunate.
Again: He quotes the fugitive clause of the
Constitution, and takes occasion to add
" This Constitution has been considered the
fundamental law of the land it is the found
alton Of all the glory of the country; all our
civil virtues have ilourished under it; it &C.
cured the fruits of our Revolution
The English judges are accustomed to say
rs much, and about the same thing, for their
Constitution, although none of them are exact
ly certain that they have one, or what it means,
if they have. And we suppose the Jews might
have been as eloquent and as loyal about the
laws of Moses, although the law of divorce at
the discretion of the husband stood upon its
pages Just rs the rendition clause is in our
Constitution. Jesus had his opinion Of the d.
vorce provision, nevertheless, and he expressed
it. Judges are excellent in legal logic, but
they often make sorry figure in philosophy
and poetry. When they have given their own
kind of reason for a Judgment, they ought to
let it stand at that.
To the objection that this provision in the
Constitution is to depend on the States for its
execution, and therefore not within the sphere
of Federal legislation, he replies, first that
there can DO no law without n sanction
We do not understand this answer, and the
Judge does not help rs out Of the difficulty.
A Iaw, indeed, may not be good which provides
no penalty for its niraction, but provision in
Constitution may be good enough as a pro-
vision, though there be no way provided fol
its enforcement What penalty, for instance
IL provided, OF how to be executed for the re
fnsal by one OF the States to give "full faith
A. II. n