, 1859-06-03
But, II II aaid, The question u settled, md Cur
comes too late. deny th3t il set-

But, II II aaid, the question u settled, md our
argument comes too late. / deny that il set |
The federal legislature has usurped power
not granted By the Constitution, and federal
judiciary h.s, through ths medium Of reason
fetched Implications, derived from unwazranted
assumptions and falsa history, sanctioned Tho
usufpaton. l deny that the decisions Of a
usurping party in favor Of tbs validity Of its
own assumptions, can settle anything. It is
true that the courts and leg'slatares OF several
they have been decisions Of aequiesceuce rather
tns1 Of original aud independent inquiry. The
fact tbas such ju- Its Is HornbloTer, Wa1worth
md Webster thought on this subject IS think,
shows that Tho question is not settled. The
fact that majority Of my brethren, and l un-
derstand them, admit that II this were new
question they would be with ne, ana tnGt ;ad 5aeg
to the force Of The rule Of res adjudieato alone,
proves that the question is not settled The
truth is it is not until recently that the mass OF
intelligent and inquiring mind in this country
has been brought to bear upon this question. It
required the enactment and enforcement Of the
fugitive s1ave ast Of 1850, overriding the most
sacred and fundamental guarantees Of the Con-
stitution, and disTegatdinn8 IN its provisions
eren the decencies Of legislation, a. it for tho
very purpose of irritation and humiliation, and
the fine and imprisonment under it Of schite
men for the exercise Of the instructive virtues
Of humanity, to awaken general inquiry. That
inquiry is now going forward. And 50 surely
IS the mAtured convictions Of the mass Of intel
Igent mind in this country must ultimately
control the operations Of government in all its
departments, 80 surely is this question not set-
tied. When it is settled right, then it will be
settled, and not till then.
But, cotemporaneous construction is sppEed
n 7 ind s+A IN
full consideration. But cotemporaneous con-
st1uction speaks with divided voice. It is
true, Congress as early as 1898, legislated for
the return Of fugitives from labor. But nearly
if not quite every one Of the old Statea had also
1egislated on the same subject in fal6llment Of
legation resting On them. And such legislation
on the part Of the States, old and new, contin-
ued until the Supreme Court Of the United
| States, in the Prigg case, as late Is 1642, no
Peters, 539,) assumed for the federal govern
! ment exclusive authority over the subject And
| those who appealed to cotemporaneous con-
| straction should themselves respect it. From
the foundation Of the government until within
the last ten years, Congress claimed and e1er-
cised, without question, full and complete legis-
lative power over the territories Of the United
States; and as early as 162S, in American In
surance Company :. Canters, Il Peters, H6, J
the Supreme Court Of the United States Chief
1 Jasiee Aorsaou uetiRelIu8 lis optalon. unnnl'
ulously decieded that in territories Congress
rigltfnlly exercises the "combined powers ol
tue general and Of State government" Yet
in the recent case Of Dred Scott =. Sanford, Qs
| Howard, 3y3, all this is overturned and disre'
garded, and the whole past theory aud practice
Of the government in this respect attempted tc
be reyolutionized By judicial ipse Dirt. VT
are thus invited by that Court back to the con
sideration Of first principles; and neither it mol
those who reply on its authority hare right tt
complain if We accept the invitation.
know Of no way, other than through the &C
ton Of the state governments, in which the re
served rights and powers Of the states can b.
erty be yindicated- The history Of this couLtry
brief as it is, already shows that the fedora
Judiciary is never behind the other department
Of that government, aud often foremost, in I'll
assumptian Of non-g1anted powers An let
be- finally yielded, that the federal governmen
is, in the last resort, the authoritative judge Q
the extent Of its own powers, and the reserra
tions and limitations Of the constitution, whicl
the trainers Of TINT instrument so jealously en-
dcavoured firmly to liz and guard, will soon be
if they are not already, obliterated; and tha
government, the sole possessor Of the only mean
Of revenue, in the employment Of which th
people can be kept ignorant Of the extent q
their own burdens, and with its overshadowin
patronage, attracting to its support the nmbi
tious By means Of its honors, and the mercenar
through the medium of its emoluments, vii
speedily become, if it be not already, practical
omnipotent.
These were my opinions, freely declared. 70
years before had the honor Of 3 seat on thi
bench; and, having learned nothing during tn
pendency Of these cases to change, but much I
confirm them, know no reason why shoul
1 hesitate to avow them VOW.
l give my voice in favor Of the discharge c
the re1ator.