Page:An essay upon the constitutional rights as to slave property.djvu/15

Rh

"At the adoption of the constitution, a small minority of the states had abolished slavery within their limits, either by positive enactment or judicial adjudication; and the southern states are known to have been more deeply interested in slave labor than those of the north, where slavery yet to some extent existed, but where it must have been seen it would probably soon disappear. It was natural for that portion of the Union to fear, that the latter states might, under the influence of this unhappy and exciting subject, be tempted to adopt a course of legislation that would embarrass the owners pursuing their fugitive slaves, if not discharge them from service, and invite escape by affording a place of refuge. They already had some experience of the perplexities in this respect, under the confederation, which contained no provision on the subject; and the serious and almost insurmountable difficulties that this species of property occasioned in the convention, were well calculated to confirm their strongest apprehensions. To this source must be attributed, no doubt, the provision of the constitution, and which directly meets the evil, by not only prohibiting the states from enacting any regulation discharging the slave from service, but by directing that he shall be delivered up to the owner. It implies a doubt whether they would, in the exercise of unrestrained power, regard the rights of the owner, or properly protect them by local legislation. The object of the provision being thus palpable, it should receive a construction that will operate most effectually to accomplish the end consistent with the terms of it. This we may reasonably infer will be in accordance with the intent of the makers, and will regard, with becoming respect, the rights of those especially interested in its execution. Which power then, was it intended should be charged with the duty of prescribing the mode in which this injunction of the constitution should be carried into effect, and of enforcing its execution—the States or Congress? It is very clear, if left to the former, the great purpose of the provision might be defeated, in spite of the constitution. The States might omit any legislation on the subject, and thereby leave the owner without any known means by which to assert his rights; or they might so encumber and embarrass the prosecution of them, as that their legislation on the subject would be tantamount to denial. That all this could not be done, or omitted, without disregarding the spirit of the constitution, is true, but the provision itself is founded upon the assumption, that without it the acknowledged rights of the owners would not be observed or protected: it was made in express terms to guard against a possible act of injustice by the state authorities. The idea that the framers of the constitution intended to leave the regulation of this subject to the states, when the provision itself obviously sprung out of their fears of partial and unjust legislation by the states, in respect to it, cannot readily be admitted. It would present an inconsistency of action, and an unskilfulness in the adoption of means for the end in view, too remarkable to have been overlooked by a much less wise body of men. They must naturally have seen and felt, that the spirit apprehended to exisit in the States, which made this provision expedient, would be able to frustrate its object in regulating the mode and manner of carrying it into effect; that the remedy of the evil and the security of rights would not be complete, unless this power was also vested in the national government."

"I am satisfied from an attentive perusal of this provision, that a fair interpretation of the terms in which it is expressed, not only prohibits the States from legislation upon the question involving the owner's right to this species of labor, but that it is intended to give to Congress the power to provide the delivering up of the slave. It is peremptory and unqualified, that 'he shall be delivered up upon claim of the party to whom such service or labor may be due.' The right of the owner to reclaim the fugitive in the state to which he has fled, has been yielded to him by the States. Without this provision it would have been competent for them to have wholly denied such claim, or to have qualified it at discretion. All this power they have parted with; and the owner now has not only an unqualified right to the possession, but he has the guaranty of the constitution in respect to it. It is obvious, if Congress have not the power to prescribe the mode and manner of the 'delivering up,' and thereby provide the means of enforcing the execution of the rights secured by this provision, its solemn guaranty may be wholly disregarded, in defiance of the government. This power seems indispensable to enable it faithfully to discharge the obligation to the states and citizens interested. The subject itself, as well from its nature as from the persons alone interested in it, seems appropriately to belong to the national government. It concerns rights held under the laws, to be enforced within the jurisdiction of states other than those in which the citizens generally interested in them reside, and on a subject too, known deeply to affect the public mind; and in respect to which distinct and adverse interests and views had already appeared in the Union.—It was therefore fit and proper that the whole matter should be placed under the control of Congress, where the rights and interests of the different sections of the country, liable to be influenced by local and peculiar causes, would be regulated with an independent and impartial regard to all. It was a subject affecting citizens at the time, more or less, in almost every part of the Union—a uniform rule respecting which was desirable, and could be attained only by placing it under the action of the national government. We may add also, that as the power of legislation belonging to the states is in no instance derived from the constitution of the