Page:Unconstitutionality of the Fugitive Act.djvu/3

 between the General Government and the people we have other completely organized governments, there is no halting place between absolute submission and revolution.—On the contrary I hold that it should rather be regarded as a peculiarly happy feature of our institutions that there is such a medium ground, and that when the evil spirits of usurpation and oppression enter into and possess the Federal Power, the States may interpose with such powers as they have, to arrest the progress of the evil, and to avert, if possible, the necessity of the last resort to the terrible ordeal of revolution. The same reasoning that proves the right of the people to that last resort, proves still more strongly their right to avail themselves in the first place, of every means of protection within their reach. And that the State Governments furnish such means can not be questioned by any one.

This is a subject upon which there are, perhaps, not many authorities directly sustaining the position for which I contend. Indeed it is a position that would not be likely to be sustained by the Federal courts, because it calls in question the conclusiveness of their decisions.—But the Supreme Court of the United States has itself asserted the general principle, as applicable to another portion of the reserved rights of the States. That court might, perhaps deny its application here, but it seems to me to be far more applicable to the right of the State to defend the liberties of its people, than to its right to take their property for public use. I read from the 6th of Howard's Reports, on page 531, where the court says:

"No State it is declared shall pass a law impairing the obligation of contracts; yet with this concession constantly yielded, it cannot be justly disputed that in every political sovereign community, there inheres " the right and duty of, and of protecting and promoting the interests and welfare of the community at large. This power and this duty are to be exerted not only in the highest acts of sovereignty and in the external relations of government; they reach and comprehend likewise the interior polity and relations of social life, which should be regulated with reference to the advantage of the whole society. This power, denominated the eminent domain of the State, is, as its name imports, paramount to all private rights vested under the Government, and these last are by necessary implication, held in subordination to this power, and must yield in every instance to its proper exercise. The Constitution of the United States, although adopted by the sovereign States of this Union, and proclaimed in its own language to be the supreme law for their government, can by no rational interpretation, be brought to conflict with this attribute in the States; there is no express delegation of it by the constitution; and it would imply an incredible fatuity in the States, to ascribe to them the intention to relinquish the power of self-government and ."

We stand, therefore, here to-day upon the doctrine of State Rights, though we do not attempt to deny that it is a doctrine surrounded by difficulties—difficulties on both sides. As to how these difficulties are to be avoided, different men give different answers. Those whose minds incline them toward consolidation, will answer that they are to be avoided by absolute submission on the part of the States. Those on the other hand, who look with jealousy upon the Federal power, will say that they are to be avoided by each carefully and scrupulously abstaining from encroachment upon the rights of the other. They might say with Judge Story, that "the part of true wisdom would seem to be to leave in every practicable direction, a wide if not an unmeasured distance between the actual exercise of the sovereignty of each." Or they might, perhaps, rather answer as one of the great political parties of the country, which has adopted the doctrines of the Virginia and Kentucky Resolutions which I have read, has answered, and say that they are to be avoided by a strict construction of the constitution by all the agents and departments of the General Government, and that it "is inexpedient and dangerous for Congress to exercise doubtful and constitutional powers."

And now, Sir, I come to the application of the doctrines I have contended for to this case. And that is that whatever objections might be urged against the actual exercise of the right of resistance by the legislative or executive departments of the State, cannot be urged with equal force against the action of its Judiciary. But that this department may, to the extent that its mode of action allows it to go, interpose its power in behalf of the rights and liberties of the people, without much danger of producing a serious or forcible collision between the two systems of government. And we hold that it follows as a necessary consequence of State sovereignty that upon all questions touching that sovereignty, the Judiciary, as one of the great departments of the State, is to decide independently of all other tribunals upon earth. And that whenever it is alleged that a citizen is imprisoned under an unconstitutional act of congress, upon a subject, the entire control of which, within its own limits, belongs to this State, it is the high prerogative and solemn duty of our Judiciary, untrammelled by anything save the constitutions and its oath, to examine into the truth of that allegation; not in a captious or defiant spirit, but carefully and solemnly; and if it is satisfied of its truth, to extend its protecting power around that citizen, trusting the consequences, whatever they may be, to the impartial judgment of the country and the world.

This is a question that could only arise in an extreme case, and, therefore, is one upon which judicial authorities in point are not likely to be abundant. But since commencing this argument, a New York Tribune has come to my hands, containing an article in which it is said that in the case of "Rittenhouse's Executrices, growing out of the celebrated Olmstead affair," the following doctrines were laid down by Chief Justice Tilghman of Pennsylvania:

"The United States have no power, legislative or judicial, except what is derived from the Constitution. When these powers are clearly exceeded, the independence of the States and the peace of the Union demands that the State Courts should, in cases properly brought before them, give redress.  There is no law that forbids it: their oath of office exacts it; and if they do not, what course is to be taken?  We must be reduced to the miserable necessity of opposing force to force, and arraying citizen against citizen; for it is in vain to expect that States will submit to manifest and flagrant usurpations of power by the United States, if (which God forbid!) they should ever attempt them."

I have never examined the case referred to, but presume from the character of the Tribune for accuracy, that the quotation is correct; and if so, that celebrated Judge fully sustains the position for which I contend.

In the case of Martin vs. Hunter's Lessee, 1st Wheaton's Reports 304, it appears that the court of Appeals of the State of Virginia refused to obey the mandate of the Supreme Court of the United States, and that, because it placed a different construction upon the Constitution.—The course of that court seems to be also an authority in my favor. But even if we have no judicial precedents in favor of the right of the States to protect their people against tyrranytyranny [sic] and usurpation, it is time such a precedent should be made.

The relator, Sherman M. Booth, was complained of under the 7th section of the late act of Congress, commonly called the Fugitive Slave Law, for aiding in the escape of one Joshua Glover, from the custody of Deputy Marshal Cotton, Glover having been arrested as a fugitive from labor. He was examined and held to bail. He was afterwards surrendered, and sued out this writ to be released from imprisonment, chiefly for the alleged reason that the act of congress is unconstitutional and void.

In appearing here, we feel that we have crossed the threshholdthreshold [sic] of our last refuge. We believe that the State courts may protect us if they will. That by a wise and firm interposition of their powers in behalf of the liberties of the people, they may present a barrier between those liberties and that spirit of oppression that is abroad in the land. That they may perform for us the kind office of the guardian shaft, that, reared above our dwellings, points fearlessly to the clouds, and receives upon itself unscathed, the rattling thunders, that otherwise had dashed us to pieces! And our hope in this respect is justified in a degree, by the fact that we stand here at all this day, and that the United States officers are here to give account to this court concerning our imprisonment. Because it has lately been declared here by those officers, that they would not condescend to render such account at all, and that whenever they seized upon a citizen, it was little better than an impertinent interference on the part of the Stat tribunals to enquire of them, "Why do ye so?"—These doctrines fell upon the public mind like strange and unheard of signs in heaven, filling it with horror and alarm. And it is doubtless to the prompt and decided manifestation of that horror and alarm by the people, and to the resistance of our State Judiciary, that we are indebted for the fact that the U. S. officers have receded from their position, and have appeared here to render a reason to this court why they imprison us. And we believe that the power of the court does not stop here, but that if satisfied that the reason is insufficient, it may discharge from custody the citizen whose liberty has been