Page:An essay upon the constitutional rights as to slave property.djvu/18

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have but little to add to what Judge Nelson has said upon the subject.

It is plain that, according to article 4, section 2, clause 3, of the constitution, a person held as a slave in one state, under the laws thereof, who escapes into another, is not to be discharged from slavery by means of any law or regulation existing in the state to which he escapes.

The owner's property being thus secured and protected by the constitution, he has the same right to take possession of his slave when he finds him in the state to which he escapes, that he would have in the state from which he escaped. As, upon an escape from one county into another of the same state, the owner may take possession of his slave in the latter county without any warrant or process whatever; so, upon an escape from one state into another of this Union, the owner may, in like manner, under the constitution which governs the Union, take possession of his slave without any warrant or process.

If, in the state to which the slave escapes, there be any state law or state regulation to prevent the owner of the slave from taking possession of his slave and carrying him away, such state law or state regulation violates the provision in the Constitution of the United States; and this constitution being the supreme law of the land, the state law or state regulation which violates the same is null and void.

But there may be a question, whether the person who is seized was in truth and in fact held to service in another state under the laws thereof. Is this question to be tried by a jury in the state in which the seizure takes place? Certainly not. The counsel who argued the case of Jack v. Martin before the court of errors, on behalf of the owner, very correctly observed, that "the constitution evidently contemplates a summary investigation. The fugitive is to be delivered up 'on claim.' These words import a summary proceeding." "If," said he, "it intended to declare that a fugitive servant should be delivered up after trial and judgment, attended with all the forms of the common law, the words 'on claim' would be idle. He could not be said to be delivered up on claim, whose surrender was the result of a final and conclusive judgment." The counsel said most truly, that "the citizens of the slave-holding states would never have consented to subject themselves to the necessity of establishing their claims to their fugitive slaves, before juries composed of the inhabitants of non-slave-holding states. Indeed, the difficulty of establishing the identity by proof that would satisfy the strict common law rules of evidence on jury trials, and the great delay and expense of successive appeals, would render even the successful prosecution of a claim to service, in the state in which the arrest is made, in the ordinary mode by trial and judgment, vexatious and unprofitable to the claimant."

All that the claimant has to do is to show, in a summary way, that the person whom he claims was his slave in another state.

Ought this inquiry to be gone into before any state tribunal, acting as such? It would seem not.

It was said by Gov. Randolph, in the Virginia convention, that "every government necessarily involves a judiciary, as a constituent part. If then a federal judiciary is necessary, what are the characters of its powers? That it shall be auxiliary to the federal government, support and maintain harmony between the United States and foreign powers, and between different states, and prevent a failure of justice in cases to which particular state courts are incompetent. If this judiciary be reviewed as relative to these purposes, I think it will be found that nothing is granted which does not belong to a federal judiciary. Self-defence is its first object. Has not the constitution said, that the states shall not use such and such powers, and given exclusive powers to Congress! If the state judiciaries could make decisions conformable to the laws of their states, in derogation to the general government, I humbly apprehend that the federal government would soon be encroached upon. If a particular state should be at liberty through its judiciary to prevent or impede the operation of the general government, the latter must soon be undermined. It is then necessary that its jurisdiction should extend to all cases in law and equity, arising under this constitution and the laws of the United States."

In the convention of North Carolina, Mr. Davie said—"It appears to me that the judiciary ought to be competent to the decision of any question arising out of the constitution itself. On a review of the principles of all free governments, it seems to me also necessary that the judicial power should be co-extensive with the legislative. It is necessary in all governments, but particularly in a federal government, that its judiciary should be competent to the decision of all questions arising out of the constitution." Again, he said—"Every member who has read the constitution with attention, must observe that there are certain fundamental principles in it both of a positive and negative nature, which being intended for the general advantage of the community, ought not to be violated by any future legislation of the particular states. Every member will agree, that the positive regulations ought to be carried into execution, and that the negative restrictions ought not to be disregarded or violated. Without a judiciary, the injunctions of the constitution may be disobeyed, and the positive regulations neglected or contravened."