Page:An essay upon the constitutional rights as to slave property.djvu/16

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United States, but flows from their own sovereign authority, any law they might pass on the subject would not be binding beyond their jurisdiction—and any precept or authority given in pursuance of it, would convey none to the owner to remove the fugitive beyond it: the authority of each state through which it was necessary to pass would become indispensable."

"Great consideration also we think due to the law of 1793, as a contemporaneous exposition of the constitutional provision. It was passed about four years after the adoption of the constitution, by a Congress which included some of the most distinguished members of the convention. At the distance of forty years, we should hesitate long before we came to the conclusion that an error was committed in the construction of this instrument under such circumstances, and which has been ever since acquiesced in, so far as we know, without question. Our own statute books also show, that down to 1830, no attempt had been made here by state legislation to interfere with this regulation of Congress.

"Shall the certificate of the magistrate, under the law of 1793, which declares it 'shall be a sufficient warrant for removing the fugitive from labor to the state or territory from which he fled,' be permitted to perform its office?—or shall the writ under the state law prevent it? They are antagonist and irreconcilable powers, and the case forcibly exemplifies the impracticability and danger of the exercise of both upon the same subject, and the wisdom of the rule that forbids it. It has been said, that under the law of 1793 a free citizen might be seized and carried away into captivity; and hence the necessity of the law of the state, giving to him a trial by jury upon the question of freedom."

"The proceedings are before a magistrate of our own state, presumed to possess a common sympathy with his fellow-citizens; and where, upon the supposition that a freeman is arrested, he may readily procure the evidence of his freedom. If the magistrate should finally err in granting the certificate, the party can still resort to the protection of the national judiciary. The proceedings by which his rights have been invaded being under a law of Congress, the remedy for error or injustice belongs peculiarly to that high tribunal. Under their ample shield, the apprehension of captivity and oppression cannot be alarming.

"It is sufficient for this case, that the plaintiff was brought before an officer authorized by the law of Congress to hear and determine the question and grant the certificate—that such hearing did take place; and that the certificate was granted.

"According to the view of the case we have taken, the question of slave or not, according to the laws of the state from whence the fugitive fled, belonged to the magistrate under the law of Congress to decide; and his decision is conclusive in the matter, so far as the state courts are concerned."

These extracts are from the opinion of a gentleman who has since been appointed to the high and responsible office of Chief Justice of the State. The opinion from which the extracts are made is, in all its parts, creditable to the judge who gave it, for the force of its views, and the ability with which they are urged: but it is still more creditable on other grounds. The judge has shown throughout, that the local prejudices and prepossessions of those amongst whom his lot has placed him are not sufficient to swerve him from a right decision, but that his duty to uphold the constitution and laws of the Union will he honestly and independently performed.

After this decision of the supreme court of the state of New York in the case of Jack v. Martin, the cause was removed in behalf of the slave into the court of errors—a court constituted of the president of the senate, chancellor of the state, judges of the supreme court, and all the senators. The hearing before the court of errors was in December, 1835.

Only two opinions were delivered at large. They were by the chancellor, and senator Bishop.

The chancellor, after remarking that the decision of the court below was put upon the ground that Congress not only had the power to legislate upon the subject, but that their legislation must necessarily be exclusive in relation to this matter, proceeded as follows:

"I am one of those who have been in the habit of believing, that the state legislatures had general powers to pass laws on all subjects, except those in which they were restricted by the Constitution of the United States, or their own local constitutions; and that Congress had no power to legislate on any subject, except so far as the power was delegated to it by the Constitution of the United States. I have looked in vain, among the powers delegated to Congress by the constitution, for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be embraced in the general grant of incidental powers, contained in the last clause of the constitution, relative to the powers of Congress. Const., art. 1, sec. 8, sub. 17. The law of the United States respecting fugitives from justice and fugitive slaves, is not a law to carry into effect any of the powers expressly granted to Congress, 'or any other power vested by the constitution in the government of the United States, or any department or officer thereof.' It appears to be a law to regulate the exercise of the rights secured to the individual states, or the inhabitants thereof, by the second section of the fourth article of the constitution; which section, like the ninth section of the fourth article, merely