Page:Unconstitutionality of the Fugitive Act.djvu/12

 This shows, then, that the word "claim" should be construed in its more enlarged and ordinary acceptation, which is merely, as said by Judge Wayne, "an assertion by one person" of a right of property in anything, in the sense in which a man uses it when he says he 'claims' the clothes which he wears, the house in which he lives, or his horse which is running on the commons. This construction, which seems to be the only true one, does not imply any necessity for legislation to provide for the enforcement of a legal claim. And it is perfectly consistent with the position taken above, that the only "delivery up on claim" was to be, that when the slave resorted to the State laws to obtain his liberty, the tribunal resorted to, should, on proper proof, refuse to set him free, but "deliver him up" to the person claiming him, that is, asserting a right to him. And the word "deliver" does not necessarily imply anything more than merely allowing a thing to be taken. This is both its ordinary and legal definition. This construction accomplishes the design of the clause and prevents the State laws setting the fugitive free. The other goes far beyond this and makes the State become a positive instrument for the hunting of slaves.

The free States had possessed and exercised the right of manumission to the fugitives. The slave States asked them to surrender that right, and they consented to do so and not to interfere in the struggle between the oppressor and his victim. This is one thing. But from this to go so far as to exert the power of the State in hunting down the slave, is entirely another. And it is a thing which the free States never would have consented to in those days. Mr. Atherton, in the New Hampshire Convention, a portion of the debates of which are reported in the 2d volume of Elliot's Debates, while speaking of the provision prohibiting Congress to abolish the slave-trade prior to 1808, said: "We do not think ourselves under any obligation to perform works of supererogation in the reformation of mankind; we do not esteem ourselves under any necessity to go to Spain or Italy to suppress the Inquisition of those countries; or of making a journey to the Carolinas to abolish the detestable custom of enslaving the Africans; but, Sir, we will not lend the aid of our ratification to this cruel and inhuman merchandise, no even for a day. There is a great distinction in not taking a part, in the most barbarous violation of the sacred laws of God and humanity, and our becoming guaranties for its exercise for a term of years. Yes, Sir! It is our full purpose to wash our hands clear of it."

It is impossible to suppose, that people who held these sentiments, who were thus jealous of consenting to restrict, for a short time, the power of congress to abolish the slave trade, would ever have consented to this clause, if they had believed it would make them slave-hunters and active instruments in building up and preserving that system of oppression, which they thus bitterly denounced. The court, therefore, not only unjustifiably went out of the instrument to search for its intention in an historical investigation, but after having done so, it confined its view to one side, and assumed, as its intention, something which such an investigation does not warrant, and which the clause itself does not require.

I next propose to show that the reasoning of the Judges is based upon assumption, is unsatisfactory in itself, and that its various parts are in conflict with each other.

The opinion of the Court is delivered by Judge Story. It commences on page 698 of the 16 Peter's Report. It first states the facts, and then goes into a consideration of the clause of the constitution. It says the slave-owner, if left to himself, would be subject to many inconveniences, and meet with many obstacles in recovering his slaves.—From these facts it concludes that legislation from some quarter is necessary to protect his rights. The question then is, which is to legislate, congress, or the State government. This was the great question at issue. The Court takes it up on page 615, and disposes of it in the following manner:

"If, indeed, the constitution guarantees the right, and if it requires the delivery on the claim of the owner (as cannot well be doubted,) the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted.  The clause is found in the national constitution, and not in that of any State.  It does not point out any State functionaries or any State action to carry its provisions into effect.

"The States cannot, therefore, be compelled to enforce them: and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the States are bound to provide means to carry into effect the duties of the national government nowhere delegated or intrusted to them by the constitution. On the contrary, the natural if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution.  The remarks of Mr. Madison in the Federalist, (No. 43,) would seem in such cases to apply with peculiar force. 'A right,' says he, 'implies a remedy; and where else would the remedy be deposited, than where it is deposited by the constitution?' meaning, as the context shows, in the government of the United States."

It seems difficult to believe that such reasoning as this emanated from so high a source, as the Supreme Court of the United States. It is submitted that from the beginning to the end, it begs the question at issue, and assumes in almost every sentence, that the constitution gives congress the "right," or "imposes on it the duty" to legislate in this matter, when that is the very point to be proved. In the first sentence it asserts that if the constitution guaranties the right and requires the delivery, "the natural inference certainly is that the general government is clothed with the appropriate authority and functions to enforce it." But assertion is not argument. And it certainly was a point of sufficient importance to be worthy of some reasons showing why such was "the natural inference." If the constitution requires the States to deliver, then it certainly is not the natural inference that congress has any such power. And where a clause assumes, as does this clause, to regulate State legislation, and prohibits certain things, and commands others in the same sentence, it would seem to be the natural inference that the same power which was prohibited from doing the one, was commanded to do the other, for the manifest reason that no other power is spoken of at all. The State power is expressly mentioned. It is competent to discharge the duty imposed. Chief Justice Taney says the words "seem evidently designed" to impose the duty upon the State. Mr. Webster said such was "the import of the passage." To infer, then, that another power not mentioned is to perform this duty, seems to be an unnatural and not a "natural inference," and one that requires very strong reasoning and proofs to substantiate it. The bare assertion of the court, therefore in contradiction to the natural import of the words, can be entitled to no weight.

The next sentence seems to be quite as clear, and just as applicable to the point, as the observation of Hudibras, that—"statute laws are statute laws." The court gravely tells us, that "where the end is required, the means are given; and where the duty is enjoined, the ability to perform it, is contemplated to exist on the part of the functionaries to whom it is entrusted." These are certainly very luminous propositions, and such as nobody ever would dispute. But the question was not whether where an end is required of a certain power, that power has the means to accomplish it, or where a duty is entrusted to a functionary, whether he has the ability to perform it, but it was as to what power the end is required of, and to what functionary the duty is entrusted. And this being the question, the observation of the court seems about as satisfactory as it would to say that two and two make four.

It then says, "the clause is found in the national constitution, and not in that of any State." What of that?—That proves nothing. The national constitution regulates both the legislation of the General and of the State Governments. The fact, therefore, that a clause is found in it alone, raises no inference at all that it relates to the national government only. But that is to be determined by examining the clause itself. And when we do this, we find that although it "be found in the national constitution and not in that of any State," yet it speaks only of State legislation, and not at all of national. And this raises a strong inference that the State was the power designed to legislate in this matter, while the other raises none at all that the national government was so designed. It says further—"It does not point out any State functionaries, or any State action to carry its provisions into effect." Neither does it point out any national functionaries, nor any national action to carry its provisions into effect.—And if that raises an inference against the State power, it raises the same against the national. The next sentence proceeds:

"The States, therefore, cannot be compelled to enforce