The national era. [volume] (Washington [D.C.]) 1847-1860, 1853-09-22
JUDGE McLEAN's DECISION.
Hon john MCLEAN,

JUDGE McLEANs DECISION.
Hon john MCLEAN
Judge Of The Supreme Court u. s.
RESPECTED SIR: have Just read in pape
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 az n fugitive slave. Perceiv
ing in this document arguments which appca,
to me nconclusiye, and apprehendng tina
these arguments, and the decision founded upOr
them. will tcnd-however undesred by you
to fix a system of tyranny and in Justice on OuI
country, have felt impelled as a sacred duty
to point ont these errors in direct address q
you, in humble endeavor that this question
may be reviewed, and that the evil have in
Dictated may be averted. | am aware that thi,
may be deemed an intrusive step-that the de
csion Of II Judge is considered final, and ex
empt from any subsequent complaint by pri
Vate citizens-but it should be recollected, thai
while ample provision is made by our Const
tuition for the correction of errors or usurpa
tiOns 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 ~ to other transactions of
the Government. Impressed with these sensi-
ments-although only private and aged cit-
zen venture to offer the following comments,
to which | hope, from your honOrs known lib.
crafty, 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
gltlve Slave Laws Of 1898 and 1850. AS this
cOnstitutiOnahty had hitherto been maintained
by the District Courts, 80 far as have seen
10y arguments unsatisfactory to me, was glad
20 perceive that this was the chief question-n
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 tho
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 Consttu-
ton, nor prohibited by it to the States, are re-
served to the States respectively, or to the
people" had formed the theorem that no act
OF the United States Government could he pro
nounced constitutional, unless some power wa
expressly granted in the Constitution to tia
United States, authorizing such act and as
consequence, that no department of the Unite
States Government could 'constitutionally az
sumo power which was only granted to an
other department. | had therefore, reason t.
expect that IN your argument for your decision
you would not only have adduced the powe
granted to the United States to act in the re
covery Of fugitive slaves, but that you woul
have shown that such power was expressly in
vested IN Congress In this reasonable expect
alton have been, as ever before, DISAPPOINTED
Your honor has oitod the clause of the Const
tuition requiring the delivery Of fugitives iror
service, but not the power granted for ts oxC
cution. You have relied on other argument
IN support of this enactment which seem TO m
to have but little force to counterfeit the pro
hibitiOn Of the tenth amendment
The chief if not the entire reliance Of Won
honor is on authority--the authority of the de
bates IN adopting the Constitution, and c
former judicial decisions You say In tn
case of Prigg u.s. The State of Pennsylvania
the Judges Of the Supreme Court decided with
out dissent, that Congress had the power Il
legislate on the subject" and again "Tht
Supreme Court of every State in the Union, be
fore which the question has been raised ha
recognised the same power in Congress- Thi
strong authority you think should over
individuals entertaining an opposite opinion i
great enough to change the organic law of tn
land" It seems to me this is not presentip,
the true issue. The question is not whether
any amount Of authority should ovcrbear indi
vidual opinion, with which Judge in trial hal
no concern, bat whether this weight of mere
authority should overbear strict rational in
depreciation Of the language of the Constitu
ton. In citing these authorities your homo
has not shown tho ground on which this legis
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 owl
perception of the meaning of the Constitution
and rest his opinions entirely on decisions mad
~c--s-- -, ..lsE-ct opin,sup Mhar the. ori q no
''4ffT Mr. z, espccinnS;%tn hi. cEnas L.
ground of those decisions is unknown, or see
TO lie defective The latter course may suffc
for ordinary lawyers, but will not satisfy int
ligent men, not trained in the tortuous maxim
of that profession.
Although lay down the principle that II
tional Interpretation of law, and not authorit,
should in a Republic like this, be the basis
judicial decision and although | agree to III
maxim that we should never look out of an il
strument for the intentions Of parties to it, who
they can be fully found within it, yet il ma
be useful 10 examine the collateral considers
tons by which your honor has endeavored I
sustain the eonsttutonaty Of the Fugitiy
Slave Law. You remark that the Federal Cor
stitutioh {" was discussed by the several State
who accepted it y that various ESSAYS wer
written by distinguished citizens - that thos
who enacted the law of 1913 were not ignorari
Of any of the provisions Of the Constitution, "a
come had been delegates in the Convention
&c. and you consider this an authorit
which must silence oil objection" but you
honor has not shown thpt. in all or any G
these discussions, there was sny production @
any power in Congress to pass q law ON the re
capture of fugitive slaves. There is every rca
son to believe that il the people Of the ire
States could have ioreseen that such law a
that Of 1850 could be erected on 20 unsubstan
tial foundation as the clause for the deliver
of iugtiyes from service, they never would hav
accepted the Constitution, without expunginI
that clause for they were unanimously, ans
resolntey set against any implication in tn
support Of Slavery, which this enactment deoi
dedly fixes upon them. 10 default Of any de
yeopment on this point, the mention Of the va
nous discussions on the Constitution has u,
force in proving the consttutiOnaty Of thu
Fugitive Slave Law. rh ..H4 1-.
But your honor arrives Mt your conclusion
by booking AZ the act az arising under tn
Consultation" which ! have denied aud you
ask = IL The construction of that instrument
10 some OF It's vital points, never TO be settled 9