Page:Unconstitutionality of the Fugitive Act.djvu/5

  power. In the Prigg case, in the 16th of Peters' Reports, I find on page 568, in the argument of Mr. Meredith, who contended for the power of Congress, the following language: "The constitution declares that slaves escaping from service shall be delivered up, on claim, to the person to whom such service shall be due. What is the meaning of these words on claim?  They look to a proceeding of a judicial character; to an assertion of a right of property, to be made before a tribunal competent to judge and decide; and to execute that decision by a delivery of property if the claim be established.  Is not this then a part of the judicial power, which extends to all cases at law and in equity, arising under the constitution, laws and treaties of the United States?"

This was the argument of counsel, but the court took the same position. On page 616 the court says:—"It is plain, then, that where a claim is made by the owner out of possession for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property, capable of being recognized and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties and a case arising under the constitution of the United States, within the express delegation of judicial power given by that instrument."

We find, therefore, that the counsel, in contending for the power of congress to legislate upon this subject, and the court in upholding it, placed it upon the express ground that the decision of a fugitive case, is an exercise of judicial power. What, then, becomes of the answer which Chief Justice Shaw sets up, by inference, against this objection? It falls completely, and leaves not a shadow of an answer. It leaves it clear, plain and palpable to the common understanding of everybody, that the Fugitive Act vests "judicial powers" in court commissioners, and that in doing so, it violates the constitution of the United States. And that Chief Justice Shaw was fully aware of this, is apparent from his opinion. After that part which I have read, he makes the following admission to which I invite the especial attention of the court. He says:

"At the same time it may be proper to say, that if this argument, drawn from the constitution of the United States, were now first applied to the law of 1793, deriving no sanction from contemporaneous construction, judicial precedent, and the acquiesence of the general and State Governments, the argument from the limitation of judicial power !"

Sir, I would have been glad if the learned Judge had referred us to the "judicial precedents" he speaks of. I know of none such. I believe this point never was raised in any case till it was raised by Mr. Rantoul before that court, which, after substantially admitting that the objection was good, over-ruled it, in obedience to "judicial precedents" that do not exist.

"The Chief Justice speaks of "acquiesence," but there has been no such acquiesence. Until this law of 1850, this power was never vested in court commissioners.  It is true, the law of '93 vested similar power in State magistrates, but that was in violation of a principle settled by the U. S. Supreme Court in the case of Martin vs. Hunter's Lessee, 1st Wheaton 304, where it was held that no part of the judicial powers of the United States could be vested in State courts.  The State magistrates were not called on to act under that law often enough to constitute an acquiesence.  And the State of Pennsylvania, by positive law, forbade its magistrates to act under it.  And there is, in my judgment, a vast difference between vesting this power in State officers, responsible to the people of the State, and under their legislative control, and vesting it in U. S. Court Commissioners, dependent on the court that appoints them, and responsible to it alone. Be it remembered, also, that this act of 1850 requires these commissioners to be numerously appointed, for the purpose "of affording reasonable facilities" for the recapture of fugitives. Sir, this power, in these dependent, irresponsible officers, appointed to furnish "reasonable facilities" for the destruction of Liberty, is pregnant with danger to the people of these States. It has existed only four years, and has been met with louder condemnation than any other act that was ever passed. But even if it had been acquiesced in since the beginning of the Government, still that would not entitle it to overturn the constitution. I answer in the language of Chiefe Justice Marshall, in the Bank case: "That a bold and daring usurpation might be resisted after an acquiesence still longer and more complete than this."

AFTERNOON SESSION—2½ P. M.

Having finished what I intended to say upon the objection relating to the judicial power, I return now to the consideration of the first, which is that Congress has no power whatever to legislate concerning the recaption of fugitives from labor. In presenting this, my purpose is first to maintain what I believe to be the true construction of the constitution, fortifying that construction with such authorities as I may be able, and then to examine some of the decisions that have been made in favor of the opposite doctrine. For I am aware that such decisions have been made, and that they are regarded by many as binding and conclusive. But I shall endeavor to show that there are none which deserve to be so regarded; but that, on the contrary, they are so much in conflict with each other, and with clear and well settled principles of construction, that the character of their reasoning is so dangerous and unsatisfactory, and that they give such evidence of having been made without that rigid scrutiny which so great an issue demanded, as to render them unworthy of being regarded as binding authorities by this or any other court. And if I may be allowed to "set forth great things by small," I would say that in this investigation it will be found that the proceedings of the State and general governm'ts, in relation to their respective powers, resemble those of emigrant families who have gone into a new country and settled in the wilderness. Each family devotes its attention at first to such improvements around its immediate household as will enable it to secure the necessities and common conveniences of life. The boundary lines of the farms are not run out perhaps for a long time; and when they are run, are made crooked, turning aside for slight obstacles, so that the land of one owner is often contained in the enclosure of another. Their first enclosures are also generally of an imperfect character, so that the animals of one depasture upon the lands of another, and all this occurs without attention or complaint. But when their children have grown up around them, and by the advance of society the land has become valuable, so that every foot is required to satisfy the demands of the increasing population,—the boundary lines are run over again with unerring certainty—the crooked places are made straight, and substantial enclosures are erected, so that every owner may enjoy their own.

Thus has it been with the Federal and State governments. In setting in motion the vast machinery of the new system, each endeavoring to accomplish those objects which pressed most forcibly upon its attention, they have frequently encroached upon the rights and prerogatives of each other. The encroachments have in some instances been rectified, but in others they have been acquiesced in, and the boundary lines between the two systems have been made crooked. The subject we are to consider here belongs to the latter class. And I fear this encroachment has been acquiesced in more readily than it would otherwise have been, because it was imagined that it concerned only the rights of a class of people who were poor, persecuted, despised and outcast among us. But the time has now come when it concerns the liberties of us all, white as well as black, that these boundary lines should be re-examined, and the respective rights of the Federal and State powers in this matter should be placed on their true basis. For the people are overshadowed with clouds of prosecutions, swarming with pains and penalties as numerous as the locusts which swarmed over Egypt; and it has become of vital interest to them to know whether the power for these things is really found in the Constitution, or be nothing better than a barefaced usurpation.

And in setting out upon this investigation, it is important to determine whether we have any settled rule of construction, in the light of which we can travel to a safe and just conclusion in this matter. Judge Story, in the 1st volume of his Commentaries on the Constitution, on page 383, tells us that much of the difficulty that has arisen among the various disputants upon this instrument, has been caused by the want of "uniform rules" of construction. I call the attention of the Court to this word "uniform," because we shall find it used again by Judge Story before we finish the examination. I think there is such a safe and uniform rule, and that it is to be derived, clearly and plainly, from the Constitution itself. It is admitted on all hands, that the General Government is one of limited powers, and that it can exercise none not delegated to it by the Constitution. It is well known that they who framed that government, while they wished to give it the powers necessary to accomplish the great objects committed to its care, were yet jealous of its strength, and intended to confine it to the exercise of the powers delegated to it by the instrument. We find, therefore, that the instrument