Page:Unconstitutionality of the Fugitive Act.djvu/7

 that this clause addresses itself entirely to the States, and confers no power whatever on the General Government! Sir, the opinion of Daniel Webster, given under such circumstances, weighs with a mountain weight in the scales that are to decide this question, and there is not enough force in all the judicial opinions that have been given on the opposite side, to start it alone, from the counter.

But the truth of this construction is made apparent, not only by the arguments of its friends, but by the admissions of its enemies. In the case of Jack vs. Martin, in the 14th of Wendell, to which I have already referred, Senator Bishop, as a member of the New York Court of Errors, delivered an opinion in favor of the constitutionality of the law of '93. It was the only opinion delivered, except that of the Chancellor already mentioned. In that opinion, he starts off, into an investigation of the objects of this clause, with the following extraordinary statement. He says:

"In the of any precise authority in the constitution, in regard to the removal of fugitive slaves, it becomes important to enquire as to the motives of the members of the convention who represented the slaveholding States, and the considerations which were likely to operate most powerfully upon them."

I shall have occasion to call the attention of the Court more particularly to the last part of this statement hereafter, but that which I wish it now to notice, is, that Senator Bishop admits that there is an "absence in the constitution" of that authority with which he seeks to clothe the General Government. And in order to find any support for that authority, he is compelled to go out of the instrument.

Mr. Meredith, who argued the Prigg case before the Supreme Court, in favor of the power of congress, in commenting on this clause, used the following language:

"Here, then, are two acts to be done. A claim is to be made, but the mode in which it is to be made, and the forms to be observed in making it, are not provided for.  Again, a delivery is required, but, and in what manner, the constitution does not prescribe."

Now, in order for congress to legislate upon this subject, the constitution must "prescribe" that the delivery is to take place from the General Government. Since, therefore, it prescribes no such thing, as admitted by Mr. Meredith, it follows that the delivery is to be from the State; because by the very instrument itself, if the power is not delegated to the General Government, it is "reserved to the States respectively, or to the people."

In the same case, Chief Justice Taney delivered a separate opinion. He concurred with a majority of the court, that congress had the right to legislate upon this matter, but claimed that the States had a concurrent right. In maintaining the latter opinion he speaks as follows concerning this clause:

"The language used in the constitution does not, in my judgment, justify the construction given to it by the court. It contains no words prohibiting the several States from passing laws to enforce this right.  They are in express terms forbidden to make any regulation that shall impair it.  But there the prohibition stops.—And according to the settled rules of construction for all written instruments, the prohibition being confined to laws injurious to the right, the power to pass laws to support and enforce it, is  implied.  And the words of the article which direct that the fugitive shall be delivered up, seem  to impose it as a duty upon the people of the several States, to pass laws to carry into execution in good faith, the compact into which they thus solemnly entered with each other.

Judge McLean also delivered a separate opinion in the same case, and though he sustained the power of congress, yet in speaking of this clause he says:

"The States are inhibited from passing any law or regulation which shall discharge a fugitive slave from the service of his master, and a positive duty is enjoined to deliver him up, &c."

Here, then, is the weight of authority in favor of the construction of this clause, for which I contend, that seems to me to be absolutely overwhelming and irresistible.—But to place it beyond all question, to make assurance doubly sure, we have the authority of the framers of the instrument themselves, manifested almost as clearly as if they had said in express words, that congress should have no power over this matter. Whence is this authority derived? In the first section of this same article 4, we find the following:

"Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State."

This clause, together with several others, stood as articles of compact, among the old articles of confederation. It was never pretended that they conferred any power on the congress of the Confederation. The clause concerning the delivery up of fugitives from justice was among them. These clauses were copied from the articles of confederation into the present constitution. And it is manifest that the framers supposed that if left in their original shape, they would confer no more power on the present congress, than they conferred on the old. Therefore, after copying into the constitution this clause concerning records, &c., they proceeded to add to it the following power:

"And congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof," and so the section now stands.

They evidently supposed that without this addition, the clause conferred no power on congress. The implication from this, is almost irresistible, that they regarded the clause concerning fugitives, as vesting no power in congress, and that if they had intended to grant such power, they would have added it expressly, as they did in the clause concerning records.

I have now finished my argument upon the meaning of the clause and have shown, as it seems to me, that by its fair and true construction, it is a mere article of compact between the States, vesting no power whatever in the General Government. And if this is so, then the Fugitive Act is an exercise of usurped power, destructive of the rights of the States, and can impose no obligation on their judicial tribunals.

It remains for me now, in order to finish this branch of the subject, to examine some of the decisions that have been made sustaining the legislation of congress. These decisions have been made mostly concerning the law of '93. The question, however, so far as the objection I am now considering, is concerned, was the same under that law, as under the law of 1850. Almost the first case we find upon the subject, is that of Glen vs. Hodges, 9th Johnson, 67. It was decided in 1812. No objection was made to the law of '93, but it was treated as constitutional without question from any quarter. We find, also, in the 2d Pick, page 11, the case of the Commonwealth vs. Griffith.—In that case the law was objected to as unconstitutional because it provided that the person claimed might be seized without warrant. It was alleged that this infringed the right of the people to be secure from unreasonable searches, &c. This objection was overruled by the court. But the question of the power of congress to legislate upon the subject was neither raised nor decided. This case was decided only a few years after the Missouri Compromise, which followed on of the great excitements upon this question. It will be seen that the court, following the lead of the politicians, decides that the constitution was a "compromise." It says in that instrument we agreed to treat slaves as property, though it admits that "the words of it were used out of delicacy," so as not to offend some in the convention, whose feelings were abhorrent to slavery." This looks very much like an admission that the words do not mean slaves, but this point I shall not urge.  Of these two cases, I shall only say that they are not authorities against the objection I am now urging, because that objection was not raised in them.—On the contrary, by acquiescing in the validity of the law, without raising those objections, which have since agitated the highest tribunal of the States and nation, those cases furnish evidence of the assertion I have made here, that this legislation of congress had been acquiesced in, without that rigid examination its importance demanded.  They are instances where the crooked boundary lines, between the two systems, were allowed to stand without complaint.

The decision of the Massachusetts Court, in the Sims case, already referred to, rests upon the decisions that had been previously made. I shall therefore confine my further examination to those decisions, and if their reasoning can be answered, of course the superstructure reared upon them, falls when the foundation is undermined.

I suppose the only decisions that stand in our way, are the opinions delivered in the case of Jack vs. Martin, in New York, and in the Prigg case, before the Supreme Court of the United States. I propse, therefore, to examine these at some length. But it may, perhaps, be proper in the first place to say, that the case of Jack vs. Martin, before the New York Court of Errors, is not an authority against us. Chancellor Walworth delivered an opinion against the constitutionality of the law, and Senator Bishop, one in its favor. But the Chancellor, not