Page:Unconstitutionality of the Fugitive Act.djvu/10

 opinion in the Prigg case. I read from the first volume, beginning on page 387:

"The constitution was adopted by the people of the United States, and it was submitted to the whole, upon a just survey of its provisions as they stood in the text itself. In different States and in different conventions, different and very opposite objections are known to have prevailed, and might well be presumed to prevail.  Opposite interpretations, and different explanations of different provisions, may well be presumed to have been presented in different bodies, to remove local objections and win local favor.  And there can be no certainty, either that the different State Conventions, in ratifying the constitution, gave the same uniform interpretations to its language, or that even in a single State Convention, the same reasoning prevailed with a majority, much less with the whole of the supporters of it.

"Some may have interpreted its language strictly and clearly; others from a different habit of thinking may have given it a large and liberal meaning. It is not to be presumed that even in the convention which framed the constitution, from the causes above mentioned, and other causes, the clauses were always understood in the same sense, or had precisely the same extent of operation.&mdash;Every member necessarily judged for himself, and the judgment of no one could, or ought to be conclusive upon others.

"Is the sense of the constitution to be ascertained, not by its own text, but by the ' probable meaning ' to be gathered by conjectures from scattered documents, from private papers, from the table-talk of some statesmen, or the jealous exaggerations of others. Is the Constitution of the United States to be the only instrument which is not to be interpreted by what is written, but by probable guesses ?  What would be said of interpreting a statue of a State Legislature, by endeavoring to find out from private sources the objects and opinions of every member&mdash;how every one thought, what he wished, and how he interpreted it? Suppose different persons had different opinions, what is to be done?  Suppose different persons are not agreed as to the probable meaning of the framers or of the people, what interpretation is to be followed?  These and many questions of the same sort might be asked.

"It is evident that there can be no security to the people in any constitution of government, if the are not to judge of it by the fair meaning of the text, but the words are to be bent and broken by the probable meaning of persons whom they never knew, and whose opinions and means of information may be no better than their own. The people adopted the constitution according to the words of the text, in their reasonable interpretation, and not according to the private interpretation of any particular men.&mdash;*  *  *  *   The text was adopted by the people in its obvious and general sense. We have no means of knowing that any gloss short of this sense was either contemplated or approved by the people; and such a gloss, tho' satisfactory in one State, might have been the very ground of objection in another.  It might have formed a motive to reject it in one and to adopt it in another. The sense of a part of the people has no title to be deemed the sense of the whole. Motives of State policy or State interest may very properly have influence in the question of ratifying it, but the Constitution itself must be expounded as it stands, and not as that policy or that interest may seem now to dictate!"

More scathing words of rebuke for the mode of construction adopted in these cases than these used by Judge Story, could not well be uttered. He is one Story, when seeking as a judge to sustain a usurped power, but entirely a different Story, when writing as an independent author, with no purposes but those of truth to subserve. See, also, how strongly he denounces a resort to the argument of convenience, which is all that these decisions rest upon. He says:

"On the other hand, a rule of equal importance, is not to enlarge the construction of a given power beyond the fair scope of its terms, merely because the restriction is inconvenient, impolitic, or even !

"Nor should it ever be lost sight of that the government of the United States is one of limited and enumerated poewrs, and that a departure from the true import and sense of its powers is, pro tanto, . It is doing for the people what they have not chosen to do for themselves.  It is usurping the function of a legislator, and deserting those of an expounder of the law.  Arguments drawn from impolicy or inconvenience, ought here to be of no weight.  The only sound principle is to declare ita lex scripta est, to follow and to obey."

And now, Sir, I propse to examine more closely the reasoning in the Prigg case, and attempt to show that it is entirely unsatisfactory and insufficient to support the decision of the court. In the first place, I shall contend that, admitting it to be proper to go into a historical investigation of the motives of members, in order to get at the intention of the constitution, still the court has assumed positions as the basis of its reasoning, which such an historical investigation does not warrant. It states at first that, "the true design of this clause, was to guard against the doctrines and principles prevalent in the nonslaveholding States, by preventing them from intermeddling with, or obstructing or abolishing the rights of the owners of slaves. It then proceeds to argue in favor of the rights of congress to legislate, on the ground that the object was to afford to the owner the greatest possible facilities for recovering his slaves. As it proceeds in the argument, it enlarges the object of the constitution, from the simple design of preventing the States from destroying by legislation, the rights of the owner, into the much more extensive design of furnishing to the owner the greatest possible certainty of recapture, and the most complete protection against all interference with his rights, not only by legislation, but also by the acts of private individuals. [The case is reported in the 16th Peters U. S. Reports, page 539.] On the 614th page the court, in speaking of the obstacles which the master may meet, says;

"He may not be able to lay his hands upon his slave.&mdash;He may not be able to enforce his rights against persons who either secrete, or conceal, or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership; as to the courts in which he shall sue, and as to the actions which he may bring, or the process he may use to compel the delivery of the slave.  Nay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem, or no specific mode of re-possessing the slave, leaving the owner at best, not that right which the constitution designed to secure, a specific delivery and re-possession of the slave, but a mere remedy in damages; and that perhaps against persons utterly insolvent or worthless."

It is here expressly assumed by the court, and its whole reasoning is based on this assumption, that the object of the constitution was to ensure to the owner, "the re-possession of the slave" against any and all obstacles! It is conceived that this is a very different object, from that of preventing the States by legislation, from setting the slave free. And a historical investigation shows, beyond all doubt, that the latter was the only object had in view in inserting the clause in question in the constitution.

The very authorities referred to by the court, prove this position. Judge Wayne, on page 648, quotes the following statement of Judge Iredell, in the North Carolina Convention. Judge Iredell was a member of the convention which framed the constitution, and in speaking of the clause under consideration, in the State Convention, he said:

"In some of the Northern States they have emancipated all their slaves. If any one of our slaves go there and remain there a certain time, they would, by the present be entitled to their freedom, so that their masters could not get them again.  This would be extremely prejudicial to the inhabitants of the Southern States; and to prevent it this clause is inserted in the constitution!"

Mr. Madison, in the Virginia Convention, said:

"Another clause secures us that property which we now possess. At present, if any slave elopes to any of those States where slaves are free, he becomes emancipated by their ."

He then quoted the clause in the constitution, showing that under it, such emancipation could no longer take place.

These quotations show clearly that the evil complained of was the emancipation of the slaves by the laws of the States to which they escaped, and that the object of the clause was to prevent that emancipation. There is not the slightest historical evidence, that at the time the constitution was adopted, any one supposed that it imposed a duty on the people of the Free States, to become active in seizing upon and transporting back fugitive slaves.&mdash;Or that they designed to furnish slaveholders with any protection against any of the numerous dangers to which that peculiar species of property is always exposed, other than the one specifically named, that is, the discharge from service or labor by the law of the State, or a legal hindrance to his taking the slave away.

The people of the Northern States had, at that time become favorable to the policy of emancipation by law, and