Page:Unconstitutionality of the Fugitive Act.djvu/28

28 was taken up. This article provided for the surrender of fugitives from justice.

"Mr Butler and Mr. Pinckney, of South Carolina,moved to require Fugitive Slaves and servants to be delivered up like criminals.

"Mr. Sherman saw no more propriety n the public seizing and surrendering a slave or servant than a horse.

"Mr. Butler withdrew his proposition, in order that some particular provision might be made apart from this article."—''Mad. Pap''., 1447-'8.

On the 29th of August, the provision in regard to Public Acts and cords, came under consideration, when various propositions of amendment were made, and were finally referred to a committee, of which Mr. Rutledge was chairman. On the 1st of September, the article, among other matters, was reported back, and now, for the first time, was incorporated in it, a power on the part of Congress, to legislate upon the subject. Dr. Johnson, of Conn., objected to the grant of such power, because it would authorize the General Legislature to declare the effect of the legislative acts of one State in another State, and Mr. Randolph objected that it might enable the Government to usurp all State powers. After some amendments, the report was agreed to, an thus, in addition to the compact, by which full faith and credit were covenanted to be given to the public acts, records, &c., of one State by every other State, Congress was granted the "power prescribe, by general laws, the manner of proving them, and the effect thereof."

This history is important, as it not only justifies and requires a distinction to be taken between grants of power and articles of compact, but it clearly demonstrates that the Convention all along discriminated between grants of power to the government and articles of compact between the States, and as extremely jealous and cautions in making such grants, and only did so when it was deemed absolutely necessary.

Having now traced through this compact, and discovered the time and manner when it became coupled with a power, let us trace along its neighbor in regard to the reclaiming of fugitive slaves, and discover, if we can, the time and manner in which it shall be coupled with a grant of power to Congress, to secure its efficacy by legislation. We have seen that the first suggestion in regard to the subject, was on the 28th day of August, when Mr. Pinckney and Mr. Butler moved to connect it with the surrender of fugitives from justice, but withdrew the proposition, for the purpose of makin a separate provision.—On the 29th day of August, Mr. Butler offered such provision in these words:

"If any person, bound to service or labor in any of the United State shall escape into another State, he or she shall not be discharged from such service or labor in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor." "Which was agreed to nem con."

Here we have all the discussion upon the subject.—Plan after plan for the organization of the government was made and presented, resolution upon resolution offerred and discussed embracing the whole ground of Federal and Sate rights end powers, without one word being mentioned about fugitive slaves; and when it did occur to the minds of some members, suggested unquestionably by the clause in regard to fugitives from justice, it is quietly agreed that the States would deliver up such fugitives from labor. No power was asked for the Federal government to seize them; no such power was dreamed of; the proposition that the States should respectively deliver them up was acquiesced in without any dissent.—Yet we are told: arguendo, by judicial authority, that without such a clause, the Union could not have been formed, and that this provision was one of the essential compromises between the South and the North. In point fact, it did not enter in the slightest degree into the Compromises between the North and the South. I have had time and opportunity to examine the debates in the conventions for the adoption of the Constitution of only the States of North Carolina and South Carolina. In the former, the whole of article 4 was read, and though the grants of power, as contradistinguished from mere compact, were scrutinized closely, no objection was made to the absence of such grant, but the article was acquiesced in, with only a few words of explanation from Mr. Iredell, who stated that the "Northern delegates, owing to their particular scruples on the subject of Slavery, did not choose to have the word slave to be mentioned, but that was their meaning.": In the South Carolina convention, I have been unable to find a word of comment on the subject. In Virginia, it was discussed by Messrs. Madison and Randolph, who never claimed for it the character of a power delegated to the National Government. It is nowhere mentioned as entering into the compromises of the Constitution. How, then, can any one say, that without this provision, the Union could not have been formed?—And yet such assertion, contradicted by the truth of history, is made the pretext for the exercise of powers by the General Government, that could not stand for a single Government upon a similar basis, in respect to any other subject matter.

We have seen how the power of legislation was granted to Congress in respect to public records, &c. We have seen that no such power is granted in respect to the surrender of fugitives from labor, and that it was not even asked for; and from the known temper and scruples of the National Convention, we may safely affirm, that had it been asked for it would not have been granted, and had it been granted, no Union could have been formed upon such a basis. The history of the times fully justifies this conclusion. Can it be supposed for moment, that had the framers of the Constitution imagined, that under this provision the Federal Government would assume to override the State authorities, appoint subordinate tribunals in every county in every State, invested with jurisdiction beyond the reach or inquiry of the State Judiciary, to multiply executive officers ad infinitum, wholly independent of, and irresponsible to the police regulations of the State, and that the whole army and navy of the Union could be sent into a State, without the request and against the remonstrance of the Legislature thereof: nay, that even under its operation the efficacy of the Writ of Habeas Corpus could be destroyed, if the privileges thereof were not wholly suspended; if the members of the Convention had dreamed that they were incorporating such a power into the Constitution, does any one believe that it would have been adopted without opposition and without debate? And if these results had suggested themselves to the States on its adoption, would it have been passed by them, sub sliento, jealous as they were of State Rights and State, Sovereignty? The idea is preposterous. The Union would never have been formed upon such a basis.

This clause in regard to public records forms one section by itself with its grant of power added upon full consideration. The 2d section of the same article contains three clauses, but all grouped and numbered together.

"The citizens of each State shall be entitled to all privileges and immunities of citizens of the several States."

"A person charged in any State with treason, felony, or other crime, who shall flee from justice and be found in another State, shall, on demand on the executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."

"No person held to service or labor in one State, under the laws thereof,escaping into another shall in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such labor or service may be due."

Here is the whole of the section, without one word of grant or one word from which a grant may be inferred or implied. Congress has the same power to legislate in regard to, fugitives from justice or labor. But it may be asked, how ore the rights here stipulated and guaranteed, to be enforced? I answer that every State officer, executive, legislative and judicial, who takes an oath to support. the Constitution of the United States, is bound to provide for, and aid in their enforcement, according to the true intent and meaning of the Constitution. But what if one or more States should refuse to perform their duty, and its officers violate their oaths and repudiate the compact? This question is answered by asking another, What if Congress should declare a single violation of one of its laws treason, and that a conviction thereof should work corruption of blood and forfeiture of estate beyond the life of the person attainted, and the judicial department should pronounce it valid, and the executive attempt to enforce it? The simple answer is, that when the State and Federal officers become so regardless of their oath and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a wilful departure from the fundamental law of its organization, and the people would be absolved from their allegiance to it. I do not mean to say that every minor, or unintentional departure from the Constitution must work such disastrous results. On the part of the States and people there is a fixed attachment. to the Constitution, and when its provisions are violated, or its restraints overleaped, discussion ensues, and the