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let us trace along its neighbor, in regard to the reclaiming of fugitive slaves, and discover, if we can, the time and manner in which it shall be coupled with a grant of power to Congress, to secure its efficacy by legislation. We have seen that the first suggestion in regard to the subject was on the 28th day of August, when Mr. Pinckney and Mr. Butler moved to connect it with the surrender of fugitives from justice, but withdrew the proposition for the purpose of making a separate provision. On the 29th day of August, Mr. Butler offered such provision in these words:—

"If any person bound to service or labor in any of the United States, shall escape into another State, he [31] or she shall not be discharged from such service or labor in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor.' 'Which was agreed to

nem con.'

"Here we have all the discussion upon the subject. Plan after plan for the organization of the government was made and presented, resolution upon resolution offered and discussed, embracing the whole ground of Federal and State rights and powers, without one word being mentioned of fugitive slaves; and when it did occur to the minds of some members, suggested, unquestionably, by the clause in regard to fugitives from justice, it is quietly agreed that the States would deliver up such fugitives from labor. No power was asked for the federal Government to seize them; no such power was dreamed of; the proposition that the States should respectively deliver them up, was acquiesced in without any dissent. Yet we are told arguendo by judicial authority, that without such a clause the Union could not have been formed, and that this provision was one of the essential compromises between the South and the North.' In point of fact, it did not enter in the slightest degree into the compromises between the North and South. I have had time and opportunity to examine the debates in the conventions for the adoption of the Constitutions of only the States of North Carolina and

1 See ante, the notes on pp. 439, 445, 497, and Nelson, J., in his charge, October, 1852, 2 Blatchford, 561.

South Carolina. In the former, the whole of article four was read, and though the grants of power, as contradistinguished from mere compact, were scrutinized closely, no objection was made to the absence of such grant, but the article was acquiesced in with only a few words of explanation from Mr. Iredell, who [32] stated that the northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned, but that was their meaning.' In the South Carolina convention, I have been unable to find a word of comment upon the subject. In Virginia, it was discussed by Messrs. Madison and Randolph, who never claimed for it the character of a power delegated to the national government. It is nowhere mentioned as entering into the compromises of the Constitution. How, then, can any one say, that without this provision the Union could not have been formed? And yet such assertion, contradicted by the truth of history, is made the pretext for the exercise of powers by the general government, that could not stand for a single moment upon a similar basis, in respect to any other subject matter.

"We have seen how the power of legislation was granted to Congress in respect to public records, &c. We have seen that no such power is granted in respect to the surrender of fugitives from labor, and that it was not even asked for; and from the known temper and scruples of the national convention, we may safely affirm, that had it been asked it would not have been granted, and had it been granted, no Union could have been formed upon such a basis. The history of the times fully justifies this conclusion. Can it be supposed for a moment, that had the framers of the Constitution imagined, that under this provision the federal government would assume to override the State authorities, appoint subordinate tribunals in every county in every State, invested with jurisdiction beyond the reach or inquiry of the State judiciary, to multiply executive and judicial officers ad infinitum, [33] wholly independent of, and irresponsible to the police regulations of the State, and that the whole army and navy of the Union could be sent into a State, without the request, and against the re

monstrance of the legislature thereof; nay, even that under its operation the efficacy of the writ of Habeas Corpus could be destroyed, if the privileges thereof were not wholly suspended; if the members of the convention had dreamed that they were incorporating such a power into the Constitution, does any one believe that it would have been adopted without opposition and without debate? And if these results had suggested themselves to the States on its adoption, would it have been passed by them, sub silentio, jealous as they were of State rights and State sovereignty? The idea is preposterous. The Union would never have been formed upon such a basis. It is an impeachment of historic truth, to assert it.

"The clause in regard to public records forms one section by itself, with its grant of power added upon full consideration. The second section of the same article contains three clauses, but all grouped and numbered together."

The judge recites the three clauses, and, on p. 34, says: "Here is the whole of the section, without one word of grant, or one word from which a grant may be inferred or implied. Congress has the same power to legislate in regard to fugitives from justice or labor. But it may be asked, how are the rights here stipulated and guaranteed, to be enforced? I answer, that every State officer, executive, legislative, and judicial, who takes an oath to support the Constitution of the United States, is bound to provide for, and aid in their enforcement, according to the true intent and meaning of the Constitution. But what if one or more States should refuse to perform their duty, and its officers violate their oaths and repudiate the compact? This question is answered by asking another What if Congress should declare a single violation of one of its laws, treason, and that a conviction thereof should ·work corruption of blood and forfeiture of estate beyond the life of the person attainted, and the judicial department should pronounce it valid, and the executive attempt to enforce it? The simple answer is, that when the State and federal officers become so regardless of their oaths and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a willful departure from

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the fundamental law of its organization, and the people would be absolved from their allegiance to it. I do not mean to say that every minor, or unintentional departure from the Constitution must work such disastrous results. On the part of the States and the people there is a fixed attachment to the Constitution, [35] and when its provisions are violated or its restraints overleaped, discussion ensues, and the government is brought back to the constitutional tack; but I repudiate the degrading insinuation that State officers are less faithful to the Constitution than federal officers. On the contrary, from the very fact that upon them is devolved the duty and responsibility of guarding the rights and sovereignty of the States under the compact of the Union, they must necessarily be more watchful of the exercise or assumption of power, on the part of the States respectively and of the general government, than federal officers would naturally be.

"It may be again repeated, and cannot be repeated too often, that upon the States rests the immense responsibility of preserving not only their own sovereignty, but the just constitutional powers of the general government. Let it also be remembered, that the States and their civil functionaries are as essential to the existence and operation of the government of the Union as are the peculiar officers of the latter. Each and all are parts of a united whole, and all are bound by the most solemn ties of fidelity to all and every part thereof.

"What would be thought by the people of this country, should Congress pass a law to carry into effect that clause of the fourth article in regard to citizenship? and declare pains and penalties against any State functionary who should fail to comply? What would be thought if Congress should declare it a penitentiary offence, for any executive of a State to refuse to surrender a fugitive from justice? What State would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law, or what federal court would assume to compel his obedience [36] by mandamus? And yet the assumption of power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground. A bare

statement of the proposition assumed, is its most effectual refutation.

"The law of 1793 was in fact but little, if any more than organizing the State authorities for the accomplishment of the constitutional duties devolved upon them. For that very reason it passed without scrutiny, and for a long time was obeyed without question. It was practically nothing more than the States themselves carrying out the constitutional compact. Not until it began to be required that the States should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early Congress and was signed by the father of his country, and was acquiesced in by the States and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest years of the Republic. So it must always be. But time, discussion, and experience have heretofore proved adequate correctives. So may they ever prove. Added to these, State sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.

"To my mind, therefore, it is apparent that Congress has no constitutional power to legislate on this subject. It is equally apparent, that the several States can pass no laws, nor adopt any regulations, by which the fugitive may be discharged from service. All such laws and regulations must be declared void whenever they [37] are brought to the test of judicial scrutiny, State or national. It is equally apparent that it is the duty of the respective States to make laws and regulations for the faithful observance of this compact. They have generally done so, and doubtless would have continued so to do, but for the decision of the United States Supreme Court in the case of Prigg v. The Commonw. of Penn. It is still their duty so to do."

Afterwards, in considering the meaning of the word claim, he says, p. 39, "the State whose duty it is to deliver up the fugitive when the fact is determined."

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