Page:Unconstitutionality of the Fugitive Act.djvu/27

Rh Government, which is not expressly granted or necessarily implied in the Federal Constitution

Nor can I yield to the doctrine early broached, but as early repudiated, that any one department of the govern. meat is constituted the final and exclusive judge of its own delegated powers. No such tribunal has been erected by the fundamental law. The. judicial department of the Federal Government is the creature, by compact, of the several States as sovereignties. That department can exercise no power not delegated to it. All power not delegated and not prohibited to the States, the States have expressly reserved to themselves and the people. To admit that the Federal Judiciary is the sole anti exclusive judge of its own powers, and the extent of the authority delegated, is virtually to admit that the same unlimited power may be exercised by every other department of the general government both legislative and executive, because each is independent of, and co-ordinate with the other. Neither has any power but such as the Starers have delegated, and all power not delegated, remains with the States and the people thereof. In view of the vastly increasing power of the Federal Government, and the relatively diminishing importance of the State sovereignties respectively, the ty of the latter to, watch closely and resist firmly, every encroachment of the former, becomes every day more and more imperative, and the official oath of the functionaries of the States becomes more and more significant. As the power of the Federal Government depends solely upon what the Sates have granted, expressly or by implication, and as no common. judge has been provided for, to determine when the one or the other shall have proved unfaithful to the compact, the solemn pledge of faith exacted from both, has been deemed an effectual guaranty, and a frequent recurrence to the fundamental principles on which our government is organized, a sufficient stimulus to every public officer and to the people at large, both to yield and exact a perfect conformity. But I solemnly believe that the last hope of free representative fedreative government rests with the States. Increase of influence and patronage on the part of the Federal Government, naturally leads to consolidation, consolidation to despotism. and ultimate anarchy, dissolution, and all its attendant evils.

If the sovereignty of the States is destined to be swallowed up hy the Federal Government, if consolidation is to supplant federation, and the General Government to become the sole judge of its own powers, regardless the solemn compact by which it was brought into existence, and the source of its own vitality, as an humble officer of one of the States, bound to regard the just rights and powers, both of the Union and the States, I want my skirts to be clear, and that posterity may not lay the catastrophe to my charge. I am truly thankful for the same feeling of conscientious firmness on entering upon he discharge of the duty before me, as would be required in ease of direct invasion, open rebellion, or palpable treason against our common country.

Without the States there can be no Union. The abrogation of State, sovereignty is not a dissolution of the Union, but an absorption of its elements. He is the true man, the faithful officer, who is ready to assert and guard every jot of power rightfully belonging to each, and to resist. the slightest encroachment or assumption of power on the part of either.

The Constitution of the United States is a peculiar instrument, and it has brought into existence and operation a peculiar system of government. But little, if any, aid is furnished in its construction by analogy. It is not merely a grant of powers. It not only confers powers upon the Federal Government, but it guaranties rights to the States and to the citizens. It was not designed merely to provide a General Government for all the States, but to provide security and protection for the States and people who are parties to the compact by which it is created.Not only did it confer certain powers upon the General Government, but it imposed solemn duties upon the Government; thereby created, and upon the States who were its creators. More than this, it solemnly enjoined upon both the State and General Governments, the exercise of certain powers and duties, and the abstaining by ouch from the exercise of powers and functions exclusively pertaining to either.

It is an instrument of grants and covenants. Somewhat like an indenture of conveyance, it contains not only grants of powers, but covenants for the faithful observance of the stipulations therein contained. It creates three distinct departments of government, the executive, legislative and judicial, and grants to each, the powers which it was designed that they shall respectively exercise; all those powers not granted or prohibited to the States, it especially reserved to the States and the people. In addition to this the States, the sole parties to the instrument, by it, solemnly and mutually engaged that they would do certain things, and that certain things they would not do, and that certain things should not be done, either by the government of the Union, of of the States. The language of the Constitution is so peculiar, that the distinction between power to be conferred upon the Government about to be created, and covenants entered into between the parties, as States is obvious at a glance. Congress my exercise all the legislative power granted in the Constitution, but no other, because all other's are especially reserved to the States and the people. In the same article which grants the legislative powers to Congress and enumerates and defines them, is contained also a prohibitory covenant or compact, by which the States have agreed not to do certain things, which before as sovereignties, they had an undoubted-right to do. "No state shall grant letters of Marque and reprisal, coin money, emit bills of credit, make anything but gold and silver coin a legal tender, pass any bills of attainder, ex post facto law or any law impairing the obligation of contracts," &c.

Now suppose, in violation of this compact, any State should do any of the things herein prohibited. Is it pretended that Congress has the right to make such acts on the part of the officers of the State, penal? Or by legislation call such offending State to account? Exclude from the Union? Expel representatives from their: seats? Arrest its executive, its legislators and judges, and imprison them The acts of such State would be simply void; and it would be the duty of all courts, both Federal and State, so to declare them. They would afford no, protection to any person or officer acting under: them, not because Congress has any legislative power to denounce or abrogate them but because they are in violation of the fundamental law.

8o, also, in the same section, are contained sundry prohibitions upon the United States, among which is the following: "The privilege of the Writ of Habeaus Corpus shall not be suspended, unless when in cases of rebellion or invasion, the public safety may require it." Suppose in a time of profound peace and quiet, the Federal Government should pass a law suspending the privileges of this writ. Would the State Government have the power to call to account the Federal Officers who had violated the compact in this behalf? The legislators who passed, and the executive who approved it? Not at all. Such an act of Congress would simply be void, and it would be the duty of every State and Federal Court so to pronounce it, and it would afford no protection any officer, State or Federal, for refusing to obey such orbit.

I mention the illustrations to show that a great portion of our Federal Constitution rests in compact, while still another portion rests in grant. Where powers are granted, they are to be exercised; where rights rest in compact, they have still the three of law; but the Federal Government has no power to legislate upon them—they are to be obeyed and enhanced by the parties to the compact, the States themselves.

I come now to consider the 4th article of the Federal Constitution. The first section provides that, "Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of, every other State," &c. The first appearance of the various provisions of this article, [ except that in relation to fugitives from labor] in the National Convention, was in the "Plan of a Federal Constitution"— submitted by Charles Pinckney, of South Carolina, May, 1787.—2 ''Mad. Pap.''

That plan contained no reference fugitives from labor. Various plans were submitted, and referred, proposition made and adopted or rejected, when, on the 25th day of July, 5787, a Committee of Detail was appointed, consisting of seven members, of which Mr. Rutledge, of S.C., was chairman, "to report a Constitution conformable to the resolutions passed by the Convention."—''2 Mad. Pap.'', 1197

On the 6th day of August, Mr. Rutledge, from the Committee of Detail,made a report. In that report the several sections now contained in the 4th article, (except the clause in relation to fugitives from labor, which had not yet been thought of,) followed each other, and the article in regard to records as yet stopped, with the mere assertion of the covenant. that foil faith. &c., should be given to them; no power was given Congress over the mater as yet.

The first assertion that appears in regard to fugitives from labor; was made on-the 28thh day of August, 1787 when article 15,, reported by the committee of detail,