The national era. [volume] (Washington [D.C.]) 1847-1860, 1853-09-22
JUDGE McLEANs DECISION.

Hon john MCLEAN,
Judge Of The Supreme Court u. s.
RESPECTED SIR: have just read in a pape
a report, which ! presume is correct Of you
honors decision in the Supreme Court of tn
United States, in the case of Washington Nc
Query. claimed IA fugitive slave. Perceiy
ing in this document arguments which appear
to me incOnclusiye, and apprehendng that
these arguments, and the decision founded upon
them will tcnd-however undesred by YOU
to fix system of tyranny and injustice on our
country have felt impelled rs u sacred duty,
to point out these errors in a direct address 20
you, in Il humble endeavOr that this question
may be reviewed and that the evil have in
dictated may be averted. | am aware that this
may be deemed an intrusive step--that the de-
clsOn Of Judge is considered final, and ex.
empt from any subsequent complaint by pri-
vate cltizens-but it should be recOllected, that
while ample provision is made by our Consti.
tuition Tor the correction of errors or usurpa.
lions by every other department of Govern
ment, those of the Judiciary can only be reach
ed by the voice Of public opinion and our con-
slant assertion Of the freedom of speech and the
press would be mere mockery if that free
dom was not permitted in regard to judicial
decisions, as well as to other transactions of
the Government. Impressed with these sensi-
ments-although only private and aged citi-
zen venture to offer the following comments,
to which hope, from your honors known lib.
crafty a candid attention
The only question involved in the decision Of
your honor, which ! propose now to discuss, is
that relating TO the constitutonality of the Flu
gtlve Slave Laws Of 1893 and 1850. AS this
constltutionality had hitherto been maintained
by the District Courts 80 far as | have seen.
by arguments unsatisfactory to me, was glad
20 perceive that this was the chief question-in
the trial before your honor; and looked with
eagerness to see what position would be taken
regarding it, and how it would be sustained by
an authority so high az that of Judge of the
Supreme Court of the United States. Bearing
IN mind the provision of the tenth amendment
OF the Constitution, that "The powers not del
egated to the United States by the Constitu
ton, nor prohibited by it to the States. are re-
served to the States respectively, or to tn,
people" had formed the theorem that no &C
OF the United States Government could he pro
nounced constitutional, unless some power wa
expressly granted in the Constitution to tn
United States authorizing such act and as
consequence, that no department of the Unite
States Government could 'constitutionaly u
sumo power which was only granted to oil
other department. had, therefore, reason
expect that IN your argument for your decisc
you would not only have adduced the pow,
granted to the United States to act in the r
covery Of fugitive slaves, but that you woul
have shown that such power was expressly i,
vested in Congress. In this reasonable expec
alton have been, az ever before, disappointe
Your honor has cited the clause of the Cons
tuition requiring the delivery of fugitives fro
service, but not the power granted for its OK
cution. You have relied on other argumen
in support OF this enactment, which seem to II
to have but little force to counterfeit the pr
hibitiOn Of the tenth amendment
The chief if not the entire reliance of yo,
honor is on authority--the authority of the d
bates IN adopting the Constitution, and
former judicial decisions You say ain Il
case of Prigg rs. The state of Pennsylvan
the Judges Of the Supreme Court decided, will
out dissent, that Congress had the power
legslate on the subject" and, again 18th
Supreme Court of every State in the Union, b,
fore which the question has been raised ha
recognised the same power in Congress- Tn
strong authority you think should U,el
bear individual opinion, unless the number {
individuals entertaining an opposite opinion
great enough to change the organic law of III
land" lt seems TO me this is not presentip
the true issue. The question is not whctb,
any amount of authority should ovcrbear ind
vidual opinion, with which a judge in trial hr
no concern, but whether this weight of mer
authority should overbear q strict rational il
depreciation of the language OF the Constit,
ton. In citing these authorities your hone
has not shown tho ground on which this legi
latiOn and decision were originally founded
and we are logically brought to the question
whether, according to the tenor Of his Office an
his oath, Judge has right to ignore his ow
perception of the meaning Of the Constitution
and rest his opinions entirely on decisions mao
gotrsgsa BY ayssrAot eain,e.. &hQy aba obifsgiNi
ground of those decisions is unknown, or Sc,
to he defective The latter course may sufii
for ordinary lawyers, but will not satisfy int,
ligent men, not trained in the tortuous maxir
of that profession.
Although lay down the principle that 7
tional Interpretation of law, and not authorit
should in Republic like this DO the basis
judicial decision and although | agree to q
maxim that we should never look out of an
strument for the intentions of parties to it, VIII,
they can be fully found within it, yet ID m,
be useful to examine the collateral consider
tons by which your honor has endeavored
sustain the eonstitutionality Of the Fugiti
Slave Law. You remark that the Federal Co
stituti0h was discussed by the several Stat
who accepted it, that various essays WEI
written by distinguished citizens " that tho
who enacted the law of '93 were not gnoral
Of any of the provisions of the Constitution,
some had been delegates in the Convention
&c. and YOU consider this an authori
which must silence all objection" but yo,
honor has not shown thar in all or any
these discussions, there was any production
any power III Congress to pass law on the r
capture Of fugitive slaves There is every re
son TO believe that if tho people Of the FIR
States could have ioreseen that such law
that of 1850 could be erected ON 10 unsubstal
tal foundation as the clause for the deliver
Of iugitives from service, they never would ha'
accepted the Constitution, without expungin
that clause for they were unanimously, an
resolntely set against any implication in ~
support Of Slavery, which this enactment dec
dedly fixes upon them In default f'any d,
velopment on this point the mention Of the vi
nous discussions on the Constitution has u
force IN proving the constitutionality Of tn
fugltye Slave Law. 7t .s.t .a. =
But your honor arrives at your conclusio
by looking III the act az arising under III
Consutnton," which ! have denied aud 70
ask Is lhe construction Of that instrumcn
10 some OF lis vital points never TO be settled ?