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§ 771. In the same Opinion, on pages 37-43 of the report, Judge Smith examines the meaning of the term claim and the effect of the guarantees in the amendments to the Constitution as being against the doctrines of seizure and removal under the provision alone, and against a trial by Commissioners as provided under the law of 1850, and against a summary trial, by any judicial officers, without jury. This portion of the Opinion will hereinafter be cited. He then proceeds to an examination of the decision of the Supreme Court in Prigg's case. This portion of the Opinion, from pp. 43-47 of the report, is given in the note below.
13 Wisc. 43. "I ought not to dismiss the consideration of this question, without particularly adverting to the case of Prigg vs. The Commonwealth of Penn., 16 Peters' Rep. 540. The opinions in the other cases cited, are so conflicting, casual, or incidental, as to be of no force; and in the case of Prigg vs. Penn., it may be justly remarked that the discrepancy of opinion among the members of the court, was so wide and fundamental, as greatly to impair the authority of that decision. It affirms the constitutionality of the act of 1793, upon contemporaneous exposition, in one respect, and expressly  defies the same rule in another, for it pronounces the act constitutional in part, and unconstitutional in another part. Whatever of authority may attach to it in consequence of the character and eminence of the men who passed it, and of him who signed it, is effectually counteracted by the decision of the court that in one part of it, at least, the constitution was violated. Contemporaneous construction confers the power of legislation and execution upon the States as well as Congress; for, long before Congress assumed to act upon the subject, the State legislature had passed laws in fidelity to the compact, in most of which some of the framers of the Constitution had seats, and all of the slave States, and all or nearly all the free States continued to exercise the power up to a very recent period.
"Contemporaneous history, contemporaneous exposition, early and long continued acquiescence, all go to show the interpretation given to this provision of the Constitution by the States and the people. The slave States passed acts to execute the compact. The free States did the same. The action of the several States, or many of them, shows conclusively that they interpreted the provision as a compact merely addressed to the good faith of the States. The slave States appealed to the free States for legislative action to carry into effect this provision of the federal Constitution, and demanded of the latter the stern exercise of a power which it is now sought to wrest from them. In 1826, the State of Maryland appointed commissioners to attend upon the session of the legislature of Pennsyl vania and induce the latter to pass an act to facilitate the reclamation of fugitive slaves Their mission was successful. Pennsylvania yielded to the solicitations  of Maryland's commissioners, and passed the act of 1826, which was afterwards declared void by the Supreme Court of the United States in Prigg vs. Penn, In 1836 or 1837, similar commissioners were appointed by the State of Kentucky to the State of Ohio, whose mission resulted in the passage of a most stringent fugitive act by the legislature of Ohio. So, also, about the same time, in regard to Indiana and I believe Illinois. Up to 1837, the States esteemed it their duty, and slave States demanded its performance, to provide by law, for the execution and faithful observance of this compact. All seemed to regard it as a compact and nothing else; binding, it is true, and operative as law equally upon all, but still a compact, and a compact only.
"Again, it is respectfully suggested, that the whole argument of Mr. Justice Story is based upon what is sometimes called the petitio principii. He assumes
§ 772. The introductory portion of the second Opinion (3 Wisc. 87-96) contains a further definition of his position as a State judge, in view of the decisions of the Supreme Court of the United States, and an assertion of co-ordinate State-judicial power to decide the question according to his own understanding of the Constitution as the highest law, and that a State
that the Constitution makes it the duty of the federal government to enforce the right of the owner secured by the compact, and then infers that it must neces sarily have the power, and then, if Congress has it, the States cannot have it.
"All admit that there is no express power in the Constitution to legislate upon this subject, but it is claimed to be necessarily implied, as incidental to the grant of judicial power. The reclamation of a fugitive is first decided to be a case' arising under the Constitution of the United States, and hence within the judicial power. But this mode of implying powers can never be sustained. The judicial power is extended in several respects beyond the legislative power. The judicial power has jurisdiction in cases arising between the citizens of different States. A citizen of  New York may sue a citizen of Wisconsin, upon a promissory note, bill of exchange, covenants in a deed, in partition of real estate, or even in ejectment for the possession or title to lands. If a power of legislation may therefore be grafted by implication upon a judicial power, Congress may assume the whole power of legislation over these subjects in the respective States, and necessarily exclude State legislation, and accomplish at a blow the complete prostration and overthrow of the State sovereignty. Other illustrations might be given to manifest the danger of engrafting a legislative power upon a judicial, by implication. This was tried at an early day, and by the same course of reasoning, common law jurisdiction was claimed for the courts of the United States, and power of legislation over all common law subjects, claimed by implication in Congress. The Alien and Sedition laws were chiefly defended on these grounds.
"On the contrary, Chief Justice Taney, in his dissenting opinion, though he admits the right of Congress to legislate, but does not argue it, thinks the compact peculiarly enjoins the duty upon the States.
"Again, this case explicitly decides the claim of the owner to a fugitive slave to be a case' within the meaning of the Constitution; hence it is a suit, not in admiralty, or equity, and hence at common law, within the meaning of the Constitution. It also decides the determination of the claim to be a judicial proceeding, and bases the power of the federal government in the premises, upon the grant of judicial power, and the power of legislation is assumed to be incidental to that. All these points, which are held to be res adjudicata, strike at the very vitality of the act of 1850, which attempts to confer such judicial  power upon Commissioners. Time will not permit a further review of this case. In my judg ment the opinion of the Chief Justice completely overthrows that of the Court, and so far as he attempts to argue his points, beyond doubt or controversy, establishes the doctrine here contended for.
"In view of the dissentient opinions of the members of the Supreme Bench; in view of the discrepancy of opinion which has characterized all other decisions wherein the question has been raised and argued; in view of the fugitive character of the power here claimed by Congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, fluttering now around an implication, then around an incident, to find whereon it may rest its foot; in view of the alarm which has seized upon many of the States in consequence of the enormous power which it has called upon Congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the States, and upon the great principles of human freedom; in view of all this, are we not justified in asking of the Supreme Court of the United States to review their decision as the majority pronounced it in the case of Prigg vs. Commonwealth of Pennsylvania?”
judge is not bound by doctrines expressed by the national judiciary in analogous cases. On p. 95 the judge refers to the proposition advanced, "that this court is bound absolutely by adjudications in analogous cases upon an analogous statute by the decisions of the Supreme Court of the United States; that to the decisions of that court we are bound to yield as to the decisions of a conceded appellate tribunal, with a 'dignified judicial subordination,'" and says, "I cannot yield my assent to the proposition. I do not so understand the relations of the respective courts. Especially," &c., in cases involving the right of personal liberty.
Judge Smith then, on the same page, proposes to recur to the fundamental principles of our government, "to refer to what would seem an obvious and primary principle. by which the federal compact is to be interpreted, and, for this purpose, to look to the origin as well as the consummation of the system of government established thereby, viz.: the source of the federal power and the extent of the power derived." Judge Smith gives his views of the location of ultimate sovereign power under the Constitution. His view is that the States severally, or the several people of the several States, each being severally possessor of the sum of the powers of a national sovereignty, were the constitutors of the United States, and that there is no integral people of the United States.'
Applying, to the construction of the provision, his conception of the constituting People of the United States, Judge
1 See pages 96-100. This part of the Opinion may vindicate that examination of this question which was attempted in the eleventh chapter of this work. On page 96, Judge Smith says:-"The Constitution of the United States is, in its more essential and fundamental character, a tri-partite instrument. The parties to it are THE STATES, THE PEOPLE, and THE UNITED STATES. The latter is, indeed, a resulting party, brought into existence by it, but when thus created, bound in all respects by its provisions. It is practically represented by its several departments, deriving their powers directly and severally through its respective grants. It is derivative, not original. Previous to the operative vitality of the Constitution, this third party to the instrument was non-existent, and of course powerless. The other two parties, the States and the People, were pre-existent, endowed with all the essential elements of sovereignty." Judge Smith thinks that no one will "pretend that the people of the confederated States created the present federal government in their capacity of a primary and ultimate source of political power, operating to institute a new and original government," and that to have done this, they must have necessarily first dissolved the State governments under which they were then living and acting, and absolved themselves from allegiance thereThe reader may compare with this the argument, ante, §§ 339–346.
Smith regards the States as the persons bound by the rule contained in it. In this he agrees with the majority of the justices in Prigg's case. He begins to disagree with them in denying that from this view of the Constitution a power in the national Government, to apply or enforce that rule, is to be inferred. It appears, therefore, that Judge Smith adopts the first of the four constructions herein before stated as possible.'
On page 100, Judge Smith says:-"What power or authority did the States relinquish by this clause? At most, the right, and power, if you will, to enact any law or regulation by which such escaping fugitive shall be discharged from such service or labor. They also covenanted that the fugitive should be delivered up. But did they delegate to the federal government the right to enter their territory and seize him? Did they authorize that government to organize a police establishment, either' permanently or temporarily, armed or unarmed, to invade their territory at will, in search of fugitives from labor, ranging throughout their whole extent, subject to no State law, but enjoying a defiant immunity from all State authority or process, while executing their mission? Did the States relinquish the right or power to prescribe the mode by which they would execute their own solemn compact,  in delivering up the fugitive? Did they, by assenting to this provision, suppose that they were yielding assent to the proposition now as. sumed as the basis, or at least the excuse, for federal interference, that they were incapable, from moral obliquity or otherwise, of executing the compact themselves? and therefore to preserve a remnant of fidelity, they would deposit this trust with the general government? The whole history of the clause in question precludes such hypothesis. The clear, indubitable construction of the words precludes it. A just conception of the relative powers of the two governments, before stated, precludes it. Every just regard to dignity and self respect on the part of the States forbids it. Every sentiment of delicacy, not to say justice, on the part of the national functionaries should revolt at it. But the contrary is the fact, as asserted, I would, if I could say, implied, by the tenor of the argument; and these assumptions, so derogatory to the good faith of the States, so repugnant to the theory of our system of government, so irreconcilable with the principles of the whole structure, prostrating the creators at the feet of the creature; disrobing the States, the sources of power, of almost every characteristic of integrity and virtue, and exhibiting the federal government as the only safe depository of those attributes; are not only made the foundation of legal argument, but they claim to be based upon judicial authority, absolutely controlling all official duty, requiring absolute and unqualified submission on the part of the States whose patriotism and good faith are thus impugned, and demanding a dignified judicial subordination' on the part of the State courts, in order to maintain the rule of judicial  order stare decisis' as established in the case of Prigg vs. Pennsylvania. 16 Peters Rep. 520.
"Nor are these assumptions unsupported by the opinion of the court in that case, to which obedience is invoked. On the contrary, they include and form the very groundwork of the decision, as a few extracts from the opinions of the judges will show. Mr. Justice McLean says, 'If the effect of it' (the clause in question) depended in any degree upon the construction of a State, by legislation or otherwise, its spirit, if not its letter, would be disregarded.' (16 Pet. Rep. 622.) Not mere waywardness to the State legislatures is here imputed, but contempt of constitutional obligation; imputed, not only to the legislatures, but to the courts likewise. Be the imputation what it may, the argument is, that because the State functionaries are unfaithful to their constitutional duties, therefore the federal officers must take upon themselves their performance.
'Again, page 661, Mr. Justice McLean says, 'The States are inhibited from passing any law or regulation which shall discharge a fugitive slave from his
He treats as an absurdity the doctrine which he attributes to Story, Wayne, and McLean, that the States are to be supposed to have solemnly agreed to perform a certain act, and by the very same act to have given the national Government a power
master, and a positive duty is enjoined on them to deliver him up.' He goes on to show the necessity of the provision, and then asks, 'Now, by whom is this paramount law to be executed? It is contended that the power rests with the States. The law was designed to protect the rights of the slaveholders against the States opposed to their rights; and yet, by this argument, the effective power is in the hands of those on whom it is to operate.' This would produce a strange anomaly in legislation. It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies  that ever assembled, they were, perhaps, the most exempt.'
"Was it folly in the framers of the Constitution to enjoin a positive duty upon the States to deliver up the fugitive' and also to leave them the adequate power to fulfill that duty? This paramount law' enjoins a positive duty' upon the States, and yet in answer to the question by whom it is to be executed?' it is asserted that it would show inexperience and folly to leave the party, upon whom a duty is enjoined, the power to perform it. Would it not rather show most consummate folly, to enjoin the performance of a positive duty upon the States, and at the same time deprive them of all power to execute it by legislation or otherwise? A positive duty is enjoined' and yet it is consummate folly to leave 'the effective power' to perform that duty in the hands of those upon whom it is enjoined! Is it supposable that the States would enjoin upon themselves a positive duty, and then voluntarily relinquish all power to perform it? The learned judge is doubtless correct in saying that a positive duty is enjoined upon the States. Concede this, and it irresistibly follows that the power to perform it remains with the States. Mr. Justice McLean must either retract from his position that a duty is enjoined upon the States, or abandon his position that they have no power to execute it by legislation or otherwise. Both cannot stand. It is immaterial which is surrendered, one is worthless without the other, and the assertion of the one is fatal to the other. A 'positive duty is enjoined upon the States to deliver up the fugitive,' yet, if left to the States to provide for its performance, or directly perform it, by legislation or otherwise,' the letter  or spirit of the injunction would be disregarded; but take away all power to execute the injunc tion and its fulfillment is secured!"
Judge Smith next, on p. 104, quotes certain passages from Story's Opinion in Prigg's case (16 Peters, 614, 623, 624, 612, 613), and says, Here is the same assumption of State infidelity which pervades the reasoning of the whole case. The States will not execute their own covenant, and therefore the federal government will execute it for them." Then citing passages from Wayne's Opinion (16 Peters, 646, 647, 648), "In all these passages the necessity of federal legislation and consequent judicial action is urged upon the assumption that the States will not, and, therefore, the federal government should carry into effect this provision of the Constitution; imputing infidelity to the former, and claiming exclusive fidelity in this behalf for the latter.
“But I will not pursue this subject farther. It is not pretended that there is any direct grant of power to the federal government in this clause, nor that it is incidental to any other grant. But it is assumed, first, that a duty is required of the States to be performed, and because it is apprehended that the States will not perform it, therefore the federal government may, and even ought to perform it. Once admit this rule of interpretation, and the blindest cannot but perceive that Congress may, as occasion shall seem to suggest, assume the entire duty of local legislation for the States, and that the whole power of internal police of the States may be usurped by the respective departments of the general governnent."