Page:Unconstitutionality of the Fugitive Act.djvu/6

 enumerates its powers in a manner as clear and plain as language will permit. After this enumeration there is a clause giving it the general power to make all laws necessary and proper for carrying into execution the enumerated powers, and all other powers vested in the general government or any of its officers or departments. But so jealous were the people of that government, that even this careful and guarded manner of expressing its powers, was not deemed sufficient, but in order to secure the reserved rights of the States from all doubt or question, they adopted the tenth amendment, that "the powers not delegated to the United States by the constitution, nor prohibited by it to the States, are reserved to the States respectively or to the people."

It is clear, then, from the very face of the instrument, that congress can exercise no power, unless it is expressly delegated to it, or is necessary to carry into execution some express power. This rule is laid down by Mr. Madison in his Report to which I have already referred the court, in the 4th of Elliott's debates, on page 567, in the following clear and admirable manner:

"Whenever therefore a question arises concerning the constitutionality of a particular power, the first question, in order to determine its constitutionality, is whether the power is expressed in the constitution? If it be, the question is decided.  If it be not, the next inquiry is whether it is clearly implied as incidental to an express grant, and necessary to its execution.  If it be, congress may exercise it; if it be not, congress cannot exercise it."

The same rule has also been established by the Supreme court of the United States. In the case of Martin vs. Hunter's Lessee, in the 3d Condensed Reports on page 583, the court says:

"The Government, then, of the United States, can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given, or given by necessary implication."

The words "necessary implication" used here, are evidently founded on the clause giving the power to make all laws "necessary and proper to carry into execution" the express powers, &c. And this is left in no doubt because in the case of Gibbons vs. Ogden, 5th Condensed Reports, on page 574, the same court says:

"No direct general power over these objects is granted to congress; and consequently they remain subject to State legislation. If the legislative power of the Union can reach them, it must be for national purposes; it must be where the power is expressly given for a special purpose or is clearly incidental to some power which is expressly given."

Now, in the light of this plain rule, let us proceed to examine the constitution. The only clause in that instrument relating to fugitives from labor is found in the 2d section of the 4th article, and is as follows:

"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 service or labor may be due!"

Is there any express grant of power to congress here? No one pretends it. The clause has been stretched upon the rack of judicial ingenuity till its joints quivered, to extort from it a confession of such a grant, but it has remained silent as the tomb. Congress is neither expressly mentioned in it, nor any idea of it implied. No man from reading this clause would know that such a thing as Congress existed; or would suspect that it was anything more than it purports to be on its face—a mere article of compact between the States, depending for its execution entirely on their integrity and good faith. But one legislative power is spoken of in it, and that is the State. A positive prohibition to discharge from service or labor is imposed; and then, in the same sentence, a positive obligation to deliver up? To whom is this obligation addressed? Clearly to the same power that is forbidden to discharge. That is the natural and ordinary import of the language. It is addressed to the State Government because that is mentioned immediately in connection with it, and no other power is mentioned at all. The clause assumes to regulate the legislation of the State. It prescribes what shall not be done, and commands what shall be done. The prohibition is expressly directed to the State, and the obligation to "deliver up," following in the same sentence, applies to the State by the ordinary force of language, without expressly saying "shall be delivered up" by the State. If I make an agreement with another that if my horse escape into his pasture, the animal shall not be kept by him for his own use, but shall be delivered up to me again, all men would understand the obligation to deliver, to be imposed upon the one who was forbidden to keep. Because, although it does not state expressly that he shall deliver, yet that is plainly implied. So when the constitution asserts that a fugitive escaping into a State, shall not be discharged by its laws, but shall be delivered up, it is just as plainly implied that he shall be delivered up by the State.

Suppose the words were changed so as to say, that when the fugitive escapes into a State, "the State shall not discharge him, but shall deliver him up." Could any one by any possible mode of construction, pretend that in that case the State would not be the party to "deliver up." Certainly not. Yet the idea is precisely the same as the words now stand. And no one can tear the sentence asunder, and thrust in a third power, to fulfill the obligation imposed, without doing equal violence to the import of the words, with that which he would do, if they were in the form I have supposed.

The State is implied also by the meaning of the word "deliver." The clause assumes that except for its obligation, the State would have uncontrolled power over the fugitive. With reference to the State, the words "shall be delivered up," were therefore properly used. But if a third power was to have the right to come in and carry the fugitive away, whether the State were willing or not, that could not rightly be called a "delivery up," but would be a taking away.

It seems plain, therefore, that the true construction of this clause leaves it a mere article of compact between the States, conferring no power whatever on the General Government.

And this conctructionconstruction [sic] is sutained by very high authorities. In the case of Jack vs. Martin, which arose under the law of '93, and is reported in the 14th of Wendell, Chancellor Walworth delivered a noble and just opinion against the constitutionality of the law. In that opinion he says:

"I have looked in vain among the powers delegated to congress by the constitution for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be embraced in the general grant of incidental powers, contained in the last clause of the constitution relative to the powers of congress.  The law of the United States respecting fugitives from justice and fugitive slaves is not a law to carry into effect any of the powers expressly granted to Congress, or any other power vested by the constitution in the Government of the United States, or any department or any officer thereof! It appears to be a law to regulate the exercise of the rights secured to the individual States, or the inhabitants thereof, by the second section of the fourth article of the constitution; which section, like the ninth section of the first article, merely imposes a restriction and a duty upon other States and individuals in relation to such rights, but vests no power in the Federal Government, or any department or officer thereof, except the judicial power of decalring and enforcing the thethe [sic] rights secured by the constitution."

The next authority to which I will refer upon this point is the authority of Daniel Webster. In his celebrated 7th of March speech, in speaking of this clause he says:

"I have always thought that the constitution addressed itself to the Legislatures of the States, or to the States themselves. It says that those persons escaping to other States shall be delivered up, and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and becoming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me that  that the State itself, in obedience to the constitution, shall cause him to be delivered up.  That is my judgment.  I have always entertained that opinion, and I entertain it now."

I need not inform this court that the man who spoke those words, won, amid all his able contemporaries, the title of "the great expounder of the constitution." He won that title, not only by the power and clearness of his expositions, but because he favored the liberal, rather than the strict construction of the instrument. Another face which is well understood, and I believe is admitted by the friends of that great man, is, that in making that 7th of March speech, his object was, not only to fulfill what he believed to be his duty to his country, but also, to use his own words, "to do his whole duty to his southern brethren," in order to secure their support as a nominee for the Presidency. Yet notwithstanding such was his object, justice to himself and to his world-wide reputation as a constitutional lawyer, required him to admit