Page:Unconstitutionality of the Fugitive Act.djvu/9

 And in the first place, I will ask the attention of the court again, to the manner in which Senator Bishop, in the 14th Wendell, sets out, upon his enquiry into the objects of the clause. I have already referred to it once, but it is so remarkable as to be worthy of a second examination. He says:

"In the absence 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, and the considerations which were likely to operate most powerfully upon them."

Sir, we could hardly have hoped that they who had determined to sustain this power, would have so frankly admitted the dangerous rule by which they were to arrive at the conclusion! The Senator says that the authority he seeks is not in the instrument. He starts, therefore, in pursuit of it, and where does he go? Does he enquire into the motives of the people who adopted the constitution? Does he even enquire into the motives of the convention that framed? Not at all. He goes to "the motives of those members of the convention !" So one-sided and dangerous a rule of construction was never broached in any tribunal before. It bears the seal of its condemnation on its own forehead! If the rule laid down in this bold avowal, is to prevail, all others must be overthrown, and all safety is at an end. But the Senator practiced upon hi rule. (Mr. Paine here read at length from the opinion and then proceeded.) It will be seen from what I have read that he comes to the conclusion that the object of this clause, was to secure the recapture of fugitive slaves—that he thinks the States would fail to abide by the obligation if left to them—that congress can accomplish its object more effectually, and more for the convenience of the owners, than the States, and the clause should be so construed as to give congress the power! This is the sum and substance of the argument, and I submit that it is a plain and palpable violation of all those settled rules to which I have called the attention of the court.—The Senator, at the beginingbeginning [sic], professes an intention to abide by the rule as to incidental powers. But he points out no power to which he claims this is incidental. On the contrary, he implies it as an independent power in the General Government, because he thinks that government can execute the clause better than the States. Upon the propriety of making such an investigation into motives, as was made by the Senator, I refer the court to the 2d of Story's Commentaries, page 533, where, in speaking of this doctrine, he says:

"Such a doctrine would be novel and absurd. It wo'd confuse and destroy all the tests of constitutional rights and authorities.  Congress could never pass any law, without an inquisition into the motives of every member, and even then they be re-examinable.  Besides, what possible means can there be of making such investigations? The motives of many of the members may be, nay, must be, utterly unknown, and incapable of ascertainment by any judicial or other inquiry; they may be mixed up in various manners and degrees; they may be opposite to, or independent of each other.  The constitution would thus depend on processes utterly vague and imcomprehensibleincomprehensible [sic], and the written intent of the legislature upon its words and acts, the lex scripta would be contradicted or obliterated by conjecture, and parol declarations and fleeting reveries and heated imaginations.  ''No government on earth could rest for a moment on such a foundation. It would be a constitution of sand, heaped up and dissolved by the flux and reflux of every tide of opinion. Every act of the legislature (and for the same reason also every clause of the constitution) must therefore be judged of from its objects an intent, as they are embodied in its provisions.''"

Judge Nelson, who delivered the opinion of the Supreme Court of New York, in this same case of Jack vs. Martin, in the 12th Wendell, says: "It is material to look into the objects of this clause of the Constitution, the evil to be guarded against, and the nature and character of the rights to be protected and enforced in order to comprehend its meaning, and determine what powers, and to what extent may be rightfully claimed under it." If it were admitted that the general government was to do, whatever is to be done, to execute the clause, this rule might correct. But when it is admitted that the words vest no power in that government—to enquire into the objects of the clause to determine whether Congress has the power to execute it or not, I have already attempted to show, is a violation of the settled rules of construction and of the constitution itself.

But the Judge accordingly proceeded, and made a similar but rather strong argument of convenience, that was afterwards made by Senator Bishop in the Court of Errors. (Mr. Paine here read at some length from the opinion.) It is plainly and palpably nothing more than an argument of convenience. The Court thinks the States would not execute the clause faithfully—that it would have been unwise to have left it with them—that Congress can accomplish it more effectually—therefore they intended to give Congress the power, and therefore Congress has the power! That is all there is of it! A mere argument of convenience, from which the court implies in Congress a power, not incidental to some other, but independent, standing by itself.

And now we come to the Prigg case, decided by the Supreme Court of the United States, which has stood like a lion in the way of everybody, I believe, except those who have carefully examined it. On page 610, 16th Peters, the Court in its opinion delivered by Judge Story, says:

"Before, however, we proceed to the points more immediately before us, it may be well—in order to clear the case of difficulty—to say that in the exposition of this part of the constitution, we shall limit ourselves to those considerations that appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature."

It will be perceived here, that the court scented the danger afar off, and like a prudent man, began in season to prepare a way of escape. It was conscious that it was about to violate the settled rules of construction, and therefore it proceeded:

"It will, indeed, probably be found, when we look to the character of the constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions, that no rule of interpretation can be applied to it, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses.  And perhaps the safest rule of interpretation after all will be found to be, to look to the nature and object of particular powers, duties and rights, with all the lights and aids of contemporary history, and to give to the words of each, just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed!"

Lysander Spooner, who contends that the clause does not apply to slaves at all, asserts that the words "consistent with their legitimate meaning," contain a deliberate falsehood thrown in by the court, to cover up its fraud.—Because if their construction was "consistent with the legitimate meaning" of the words, it would have been unnecessary for the court to have broken away from all the settled rules to arrive at it. It might not be considered respectful for me to go to the extent that Mr. Spooner did, but I must say that it seems evident that those words as used by the court, and a similar expression used by Judge Nelson, were thrown in as salvos, to break, as far as possible, the force of the violence they were about to perpetrate on the established rules of construction. The court evidently meant to say, that if from the object of a clause, it appeared that congress could execute it better than the States, they would so construe it as to give congress the power, unless the words absolutely forbid it! This was clearly all that was meant by the words, "consistent with their legitimate meaning." Because the court did not attempt to show that there were any words in the clause, which, either by their "legitimate" or illegitimate meaning, vested any power in congress, or even indicated the existence of such a body.

It will be remembered by the court that Judge Story, in his Commentaries, to which I have referred, says that they difficulty that has arisen among the various interpreters of the constitution, was for the want of some "uniform rule" of construction. But here he asserts that no uniform rule can be applied to it!

I think I have now shown that these decisions assume an ambiguity in this clause when there is none, that they abandon the words without just cause, to seek for the intention in a historical investigation, and then infer an independent power in congress to execute it, from a mere argument of convenience. I think I have shown that in doing so, they violate and overturn the settled rules of construction, and leave no safety to the States against legislative and judicial usurpations of all their powers. I cannot express my condemnation of this mode of construction in any better manner than by quoting from the Commentaries of Judge Story, who delivered this very