Page:Unconstitutionality of the Fugitive Act.djvu/14

 objection would exist against the legislation of congress? Judge Wayne says on page 645, that one great object of the constitution was "that all kinds of property, as well that which was common in all of the States, as that which was peculiar to any of them, should be protected in all of the States, as well from any interference with it by the United States, as by the States." If, then, it is a discharge from service and labor, for the States to legislate a mode in which the claim shall be asserted, it is equally a discharge for congress to legislate the same thing. For if congress can legislate on a matter at all, it certainly can provide for an appeal from one tribunal to another, or a postponement of the trial, and consequently, according to the reasoning of the court, it can discharge fugitives from service; a tact which slaveholders would not admit, and in direct contradiction to what Judge Wayne says was "a great object" of the constitution. He asks "if in a controverted case, a person charged as a fugitive, shall be discharged under a remedy legislated by a State to try the fact of his owing service or labor, is he not discharged under a law or regulation of the State?" No! Most emphatically not. That is, he is not discharged from service. It may be a discharge of a free man from the custody of one who has no right to hold him. But it is because he is a free man, and does not owe service, and consequently does not come within the constitutional requirement. And to pretend that such a discharge, under a State law, on the ground that the man was a freeman, and not a slave, was the thing designed to be prevented by the constitution, is a monstrous absurdity. Such discharges may take place, and have taken place, under the laws of congress. Yet there is quite as much evidence to show that the slave-owners did not intend to grant congress the power to discharge their slaves from service, as that they desired the Free States to surrender that power.

The constitution forbids the States to pass laws "impairing the obligation of contracts." But that they may not pass laws and establish tribunals to enforce them, nobody would for an instant pretend. Yet just as good an argument could be made in favor of such a statement, as that of the court now under consideration. The State law provides that the trial for the enforcement of a contract may be postponed, and appealed from one tribunal to another. Is not that impairing its obligation pro tanto? Precisely as much as a postponement or appeal in the case of a fugitive, would be a discharge from service. And if the court, in a case brought to enforce a contract, should decide that no contract existed, it would be just as much impairing the obligation of a contract by a State law, as to discharge from custody a person claimed as a slave, on the ground that he was free and not a slave, would be discharging a person held to service. In the one case the obligation of a contract would not be impaired, because there was no contract. In the other a slave would not be discharged from service, because no slave was before the court. The only discharge would be that of a free man from illegal restraint.

The fact that time is necessary for the investigation of all rights, is a complete answer to this forced construction, the assertion of Justice Wayne to the contrary notwithstanding. For it shows conclusively that the object of the clause was, not to save the time of a trial, but to prevent the State from setting free one, who, after a trial, was confessed to be a slave. Time must always be consumed in determining the question whether the person claimed owes service or not, and this whether the remedy is legislated by the State or national government.&mdash;And he is not discharged from service during that time, by the law, in either case. He is not discharged from actual service, because he had himself escaped from that, and is brought before the court by the master, to ascertain if he shall be taken back. He is not discharged from the obligation to serve, because the law under which the proceedings are had, commands the enforcement of the obligation so soon as it is proved to exist. The time spent, therefore, under any law, to ascertain if an obligation exist, in order to enforce it, if it does exist, is not a discharge pro tanto from the obligation, by the law; but is a withholding of a legal remedy, arising from necessity, until it can be ascertained if the case be one to which the remedy properly applies. The court, therefore, in advancing so far-fetched and strained a construction, has, without furnishing any valid reason to sustain its position, only exhibited a wanton and ferocious haste to hurry men into bondage, without time to inquire whether they were bond or free.

The reasoning is also unsatisfactory because it is chiefly found on convenience, and that not a convenience for preserving liberty, but for maintaining slavery. Whoever reads the opinions in this case, will see that the chief argument to sustain the right of congress to legislate, is, that it would be more convenient for the slave-owner, than it would under State legislation.&mdash;If there is any force in the views already presented as to the object of the clause, this argument must be entirely unsatisfactory to the people of the free States. They may reply that the object was not to devise the most convenient and speedy way to re-capture fugitives, but simply to consent to not interfere and set them free by law. They may reply further that the argument from convenience is not for a court to use, but for the legislature; that the court is to decide not what would be the most convenient law, but what is the law! They may reply further that if the argument from convenience were a legitimate one, there are other people in the nation besides slave-owners, and other interests besides slavery. And that if the convenience of slave-owners required congress to legislate to preserve slavery, the convenience of freemen required the States to legislate to preserve their liberties. And their present condition makes manifest the truth of this. Congress, under the control of the slave power, in its eagerness to grasp the slave, has trampled down the freeman. It has overthrown the writ of habeas corpus, the trial by jury, and the constitution, and left the people of the free States liable, at any moment to be made slaves by the decision of a court commissioner. This is boldly admitted by those Judges who sustain the law, as I shall hereafter show. And the people of the free States hold their liberties, not by the boasted safeguards of the constitution, but only by the honesty of bribed commissioners, and the veracity of interested and professed slave-hunters! By as much, therefore, as it is more important to preserve the liberties of freemen, than it is to perpetuate the slavery of slaves, is the argument of convenience stronger in favor of State, than national legislation, in this matter. But the supreme court on this point, as on all others, has paid no regard to the interests or convenience of liberty.

The reasoning is further unsatisfactory because it seeks to justify the exercise of this power by congress, from the fact that it has exercised another power, claimed to be of a similar nature, that of legislating for the surrender of fugitives from justice. The constitutionality of this latter legislation they say "has never been questioned." That fact, however, does not prove its constitutionality. The court admits that it "is not so readily susceptible of being brought into controversy in courts of justice," as the law for the re-capture of fugitives from labor. In truth, no instance is given in which it ever was thus brought into controversy. The object, the administration of justice and the punishment of crime, was one in which all the States and the world are deeply interested. And it was natural that the State executives, influenced by this consideration, and in obedience to the positive command of the constitution, should generally have surrendered up fugitives from justice, without inquiring very rigidly as to the authority of that legislation, which regulated only the manner in which it should be done. But if this legislation is to be used to justify the other, it will occasion its rightfulness to be inquired into. And when this is done, the same objections exist against the exercise of the one power, as of the other, by congress.&mdash;There is no express power granted to it to legislate for the surrender of fugitives from justice; neither is it necessarily incident to any express grant. And it is believed that the supreme court has recognized a principle, which destroys the constitutionality of that law, if carried out. That principle is that the general government cannot vest any of its authority in State officers. The court established that principle in the case of Martin vs. Hunter's Lessee, 1 Wheaton, 304. The same doctrine is also taught in the 3 Story's Commentaries, 114, 115, 386, 683.

These authorities were referred to by Mr. Johnson, Attorney General of Pennsylvania, in the Prigg case. And the doctrine was substantially admitted by the court in that case. Now apply that principle to the law of '93 for the surrender of fugitives from justice. That law requires the State executive to cause the fugitive to be arrested and given up on demand. This is clearly in conflict with the principle, because it vests authority in, and requires the action of a State officer, and that officer the highest. The court argued against the power of the States to legislate for the re-capture of fugitives from service, on the ground that they could not be compelled to exercise it. It was not a good argument, because the same objection existed against the power of congress. It is