Sturges and others v. The bark Mazeppa 322 Ward, survivor, &c. of Ward and an'r,

T.

Toomey v. Shields

v. Syme and others

Whitlock v. Roth

66 Williams v. Wilkinson

In a former volume of this Journal, the writer presented his views touching the manner which Congress have prescribed, should be observed by those who seek to reclaim such persons as are held to service or labor in one State, and have escaped into another State, as seen in its Act of February 12th, 1793. In tracing trat subject, it was no part of the design to call in question the power of Congress in that behalf-but only to ascertain the intent of its legislation, and the extent of the duties of those who become actors by virtue of its provisions. Correlative to the matter then discussed, is the subject. designed for the present article, viz. the Extradition of Fugitive Slaves; both being distinctly declared subjects of constitutional establishment. On the former occasion neither the constitutionality of the Act, nor the right and authority of Congress to legislate on these interests were challenged. We think we are now prepared, and hence intend to show, not the mere unconstitutionality of that Act and its supplementary Act passed September 18th, 1850, or their want of conformity, in some, or all of their particulars, to the great instrument ordaining and establishing the United States Government; but that the National Legislature have no right, no power. no authority, over these subjects whatever. This abnegation of the legislative authority of Congress in the matter of fugitives from service or labor, coming now so late in the administration of the Federal Government, and after a silent acquiescence in the exercise of such power, since the closing years of the last century, may subject the proposition to doubt and obloquy, and render its truthfulness an idea difficult of reception; yet there are those who will hear both sides of the argument before rendering judgment, however strong may be the current sentiment to the contrary. We, therefore, present a programme of our article, which may be seen thus:

I. The paragraph in the United States Constitution (Art. IV. § 2,) from which Congress claims to derive its authority for the Act of 1793, and its supplemental Act of 1850, is a compact or treaty stipulation devoid of any grant of legislative power, and containing nothing necessary in a charter of government, which for the most part the Constitution was intended to be, containing grants of power and the modes of its exercise: or,

II. The paragraph is itself a fundamental law, passed by the people

Extradition of Fugitive Slaves.

of the States, above all other legislation, and not capable of any alteration or amendment, except by the people themselves, in the manner in which the existing amendments were made: and

III. The paragraph operates no investment of power in the government of the United States, or in any department or officer thereof (Art. I. § 8); and only inhibits the exercise of power by any State, in contravention of the right of extradition therein secured by a species of treaty entered into by the States, by its adoption in their conventions.

I. Our first inquiry then, in order to a solution of the question whether Congress has any power at all to legislate on the subject of delivering up fugitive.slaves, must be into the nature of the instrument called the Constitution, or that item thereof which contains the provisions to which we have referred. If it shall appear that it contains provisions in no way called for by the necessity of the case as a charter of government, but which are mere compromises, barterings, "sops to Cerberus," to appease jealous spirits, and which, if stricken out of its pages, would not lessen its adaptation to the great end for which it was made, namely, the administration of a federal government; provisions which would equally as well suit the exigencies of the states under the old articles of confederation, as under the new order of things; language which more readily conveys the idea of a treaty stipulation between states, in their capacity of independent sovereignties, continuing to exercise all the original and inherent powers belonging to them before a general federative government was ever conceived of, than the idea of delegated power, surrendered sovereignty, or any other imparted attribute of the bodies politic of the several states; or words which negative the idea of any legislative action on the part of the new government-then it will be manifest that its framers contemplated, in some particulars, something more than a mere constitution or charter of government. All difficulty vanishes when it is allowed in the argument that it was intended by the framers of the instrument to embrace in its grasp certain treaty stipulations, or agreements, to be observed by the states forever, or while the new government should continue to exist. Such stipulations would be none the less compacts for being incorporated with the great charter of the general government; nor would they become any more the subject of its power for being so incorporated. If these stipulations contain no grant of power, then none is to be exercised; if they do contain a grant of power, then who shall exercise it? Will it be said that Congress shall exercise it? Then why may it not intermeddle in the matter of other treaty stipulations made with foreign states and powers? Why may it not legislate on the subject of the extradition of fugitives from justice, as seen in the late treaty with Great Britain, negotiated at Washington by our Secretary of State and Lord Ashburton? The answer to all this may be found in the following language of the Constitution : "All legislative powers herein granted, shall be vested in a Congress of the United States, which shall consist of a Senate and House of Representatives." (Art. II. Const. U. S. A.) By way of abundant

Extradition of Fugitive Slaves.

caution it is provided also in an 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." (Art. X. Amend. Const.) An analysis of that instrument, by which the general government was created, and by which it lives and moves, and has its being, will show that it sought to apportion its powers among the departments into which its administrators were severally placed, viz. the executive, the judicial, the legislative; that the powers intended to be exercised by each, are carefully enumerated, or defined in such manner that but little doubt can exist as to the intent of those who framed it; that it has a two-fold aspect in the creation of the government-the one exhibiting a grant of power, with a prescribed mode of its exercise, and the other a reservation of power, with imposed restraints upon its exercise. Indeed, all and singular the legislative powers that belong to the government, are grants; this is discoverable, in limine; the first line of the first paragraph of the Constitution, as seen above, evinces that Congress can exercise no power in legislation not granted by the Constitution. These gifts of power are equal in amount from every state.

II. We will now further inquire whether the language ("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," Art. IV. § 2,) contains a grant of power in the sense contemplated by the first article of the Constitution above quoted. To this end we will bring before us all the legislative powers expressly granted in the Constitution; we have seen that they are exclusively vested in Congress; we place here all those that are enumerated or expressed, as they are grouped together by the Constitution itself. "The Congress shall have power to lay and collect taxes, duties, imposts, and excises, to pay the debts and provide for the common defence and general welfare of the United States; but all duties, imposts, and excises shall be uniform throughout the United States; to borrow money on the credit of the United States; to regulate commerce with foreign nations, and among the several States, and with the Indian tribes; to establish an uniform rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States; to coin money, regulate the value thereof, and of foreign coin, and fix the standard of weights and measures; to provide for the punishment of counterfeiting the securities and current coin of the United States; to establish post offices and post roads; to promote the progress of science and useful arts, by securing for limited times to authors and inventors the exclusive right to their respective writings and discoveries; to constitute tribunals inferior to the Supreme Court; to define and punish piracies and felonies committed on the high seas, and offences against the law of nations; to declare war, grant letters of marque and reprisal, and make rules concerning captures on land and water; to raise and support armies, but no appropriation of money to that use shall be for a longer term than two years; to provide and maintain

Extradition of Fugitive Slaves.

a navy; to make rules for the government and regulation of the land and naval forces; to provide for calling forth the militia to execute the laws of the Union, suppress insurrections, and repel invasions; to provide for organizing, arming, and disciplining the militia, and for governing such part of them as may be employed in the service of the United States, reserving to the States respectively, the appointment of the officers, and the authority of training the militia according to the discipline prescribed by Congress; to exercise exclusive legislation in all cases whatsoever, over such district (not exceeding ten miles square) as may, by cession of particular States, and the acceptance of Congress, become the seat of government of the United States, and to exercise like authority over all places purchased by the consent of the legislature of the State in which the same shall be, for the erection of forts, magazines, arsenals, dock-yards, and other needful buildings; and to make all laws which shall be necessary and proper for carrying into execution the foregoing power." (Art. Ï. § 8.) Let the law makers in Congress point out in this enumeration, if they can, the warrant for their legislation on the subject of fugitives from service or labor. But there is yet a remnant of authority in the great charter for the exercise of legislative power: it is the final clause of the section just given above, and which was omitted. in that quotation, to give it the greater prominence and higher importance in this place, by itself-that extract showing what powers of legislation were granted in express terms by the Constitution; this showing that Congress have, in addition to those grants, the power to make such other laws as may be necessary and proper for carrying into execution certain other undefined and nameless powers vested in the United States Government, or its officers. "To make all laws which shall be necessary and proper for carrying into execution-all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof." We repeat, let the legislators at the Court of Washington, find warrant, express or implied, in this last quotation for their law of 1793, and its fellow, the great peace measure and peace-maker of 1850. Besides, let them show, if they can be found in the pages of the Constitution, any other grants of legislative power than those here collected. All legislative powers herein granted! quoth the Constitution: are there any others granted besides those we have cited? We do not discover any others. If the authority to enact these laws be not found among the enumerated legislative powers of Congress; if these laws themselves are not 66 necessary and proper for carrying into execution the foregoing powers." that is, those we have spread upon the record above (the affirmative of which seems too absurd for the credence of any sound mind); and if the Constitution has not vested in the Government of the United States, or in any department or officer thereof, "other powers." besides those we have shown above, requiring legislation for carrying them into execution (and it remains to be seen that any other powers have been vested requiring the Acts of 1793 and 1850), then we must make further search still for the fountain of this legislative authority.

III. We will now revert to the passage in the Constitution (Art. IV.