those words were addressed to the States, they destroy all foundation for the right of congress. There is a direct conflict between their reasoning and that in the opinion of the court.
It will be remembered that much is said about the argument drawn from contemporaneous construction. They who use this argument, continue their view entirely to the contemporaneous construction of Congress, and overlook that of the States. Now it appears from these very cases, that a number of the States, among which were New York, Pennsylvania and Maryland, regarded this as a matter to be controlled by the States, and passed laws in good faith to carry this clause into execution. Thus showing how baseless was the assertion of the Court that they would not execute it. The contemporaneous construction of the States was in our favor, and that of Congress as much for as against us. The opinion of Chief Justice Taney sustains this position. He says that the construction placed on this clause by the Court, "had not entered the minds" either of Congress, or of the States, when the law of '93 was passed.
(Mr. Paine here read at some length from the opinion.)
The court contended that if this matter was left to the States, the remedy would fail. Chief Justice Taney claims that unless States may legislate, the act of congress would be entirely ineffectual, and "scarcely deserve the name of a remedy." He cuts up root and branch the reasoning by which the court sustains the power of congress! yet he concurs in the opinion that congress has the power. By what other process of reasoning, different from that of the court, he arrives at the same conclusion, he does not explain. He concurs in the reasoning of the court, so far as to give congress the power, and then overthrows that reasoning so as to retain the power in the States. He seems to have supposed that the clause was addressed to both governments, and that both state and nation, were bound to use all diligence in hunting fugitive slaves.
Three of the Judges contend for the concurrent right of the States. One dissents from the reasoning in the opinion of the Court. It leaves, therefore, a bare majority of one in favor of the exclusive right of Congress. Now take the following extract from the opinion of Judge McLean, on of that majority, and see what strange inconsistencies they fall into in supporting their opinion. On page 660, he says:
Does the provision in regard to the reclamation of fugitive slaves vest the power exclusively in the general government? This must be determined from the language of the constitution and the nature of the power.
"The language of the provision is general. It covers the whole ground, not in detail, but in principle. The States are inhibited from passing 'any law or regulation which shall discharge a fugitive from the service of his master,' and a positive duty is enjoined on them, to deliver him up, 'on claim of the part to whom his service may be due.'"
He then proceeds to argue that the power is exclusive in congress. After asserting that the constitution "enjoins a positive duty on the States," to deliver up the fugitive, he immediately contends that they have no power to deliver him up. How a Judge of the Supreme Court of the United States could assert such a plain and apparent contradiction, it is difficult to comprehend.
There are then three Judges who claim a right in the States to legislate, one who dissents from the reasoning of the Court, and one of the five others who declares that the Constitution "enjoins a positive duty on the States to deliver up the fugitive." There seems to be about as strong support, therefore, as far as numbers are concerned even, for the opinion that the States have a right to legislate, as there is for the opinion that the right is exclusively in Congress. And when it is shown that they have a right, it follows that they have the whole right, for, as already said, the very reasoning which proves their right, destroys the right of Congress.
Such are the reasons by which the supreme court sustains the law of '93, with one exception. They say that the case of a fugitive is a case arising under the constitution, and consequently comes under the judicial power of the United States. And that therefore congress may legislate so as to carry the judicial power into effect.
After all its reasoning to show that congress had the power by virtue of the supposed intent of the clause itself, it makes one attempt to bring itself within the old rules, and to show that this power is incidental to the vesting of the judicial power. The attempt is clearly far-fetched, and by its circumlocution is a tacit admission that there was no other way to sustain the power. But that the fugitive act is "necessary and proper" to the vesting of the judicial power, cannot be maintained. If this were a case to which the judicial power extends, congress might prescribe the manner in which the case sho'd be brought before it. That is all that is necessary to the vesting of the judicial power. But the act goes far beyond this, giving remedies against individuals, inflicting penalties, and enacting many other provisions, that are not in the least necessary to the vesting of the judicial power, or at all connected with that subject. The judicial power of the United States extends to suits between citizens of different States. It would extend to an action of ejectment brought by an owner residing in another State. Congress, in order to vest the power, may prescribe how the case shall be brought before the court.—But would that give it the power to punish criminally a party who had committed and injury to the property, or to give to the owner a right of action against him for a penalty? Clearly not. Yet such a power would seem to be just as necessary to the vesting of the judicial power, as does a large part of the Fugitive Act.
But I think the true answer to this argument is, that so far as the proceedings of the owner are concerned, that a fugitive case is not a case at law or equity arising under the constitution, to which the judicial power extends, at all. What I have already said on the meaning of the word "claim," in this clause, goes to show this. The only kind of judicial proceedings contemplated by the clause, seems to be a resort by the fugitive to State laws, to obtain his liberty. The prohibition on them to discharge him, was the chief object of the clause, and the requirement of delivery, naturally follows it, meaning no more than that the state tribunals, after proof that the person claimed, was a fugitive, should not interfere with the possession of the owner, but allow him to take the fugitive away. I believe this was the only delivery ever contemplated. No case at law arises under the constitution in the proceedings of the owner. It is like the owner of a horse running at large. . He may seize the animal wherever he finds it. But he cannot sue it. He cannot begin a "case at law" by which this horse is to be caught. Let it not be supposed that by this comparison I intend to sanction the idea that a man can be the subject of property like a horse. God forbid! I only wish to argue it on the footing on which the slave laws place it. In the same way the owner is in pursuit of his property, not detained from him by any body whom he can sue, but running at large on its own responsibility. The courts have decided that he may seize it wherever he finds it, and this seems plain enough, admitting it to be property. If this right of property is secured by the constitution there is no reason why he should not take it away as soon as he gets possession, except the protection of the people of the state. This requires that the state should have the right to prevent him from doing it, until he had given the person claimed, an opportunity to sue out a writ de homine replegiando, to test the question whether he was a slave or free. This was the provision of the New York law on this subject. Under this view of it, no case at law arises under the constitution. When the person claimed sued for his freedom, it would be a case arising under a state law. It could only be brought before the judicial tribunals of the United States, by virtue of their appellate jurisdiction, when it was claimed that the state law discharged the fugitive in violation of the constitution. It would go up in the same manner as a case, where it was claimed that a state law impaired the obligation of a contract.
I have now finished my examination of these decisions, and have shown, as I think, that the reasoning by which this power is attempted to be sustained, entirely fails. If it be true, that the reason of the law is the soul of the law, according to its own maxim, then in my judgment the decisions that have sustained this power, fell still-born from the lips that uttered them, and were never animated with the breath of life. And this Fugitive Act stands out in all its horrible deformity, originating in usurpation, a fit source for so monstrous an offspring.
The court here adjourned until Tuesday at 10 o'clock.
TUESDAY, MAY 30,—10 A. M.
May it please the Court:
I yesterday urged the unconstitutionality of the Fugitive Act, on the ground that it vested judicial power in court commissioners, thus subjecting the liberties of the people to irresponsible, dependent officers, contrary to the plain provisions and obvious intent of the constitution. I also urged that congress had no power to legislate upon the subject at all, but that the clause in the constitution is a mere article of compact between the States, depending on them alone for its execution. I attempted
