Daily Ohio State journal (Columbus, Ohio : 1848), 1859-06-03

              0' VOLUME XXIII. COLUMBUS, OHIO, FRIDAY MORNING, JUNE .3, 1851). NUMBER 30. Mo tofc :gi0ttnwL. FRIDAY MORNING, JUNE 8, 1859. The Wellington Rescue Cases. Th Statu of Ohio, ex rel. 1 Simeon DuabnuU sad mother, David t. Wlnlitinan, (Sheriff of the County of Cujuboga. . In the Supreme Court of the Ututo of Ohio. , Habeas Corpni. Argument of Mr. Attorney General Wolcott ON BEHALF OF THE STATE. , EHrOUTID BY JACOB 1. IHirUBKD. (CONCLUDED.) , But then, I am told that howevor absolute and )fit,'i8tiblo the demonstration may De, u oomei Uhjlsklo. Some of the State Courts, ana the Supreme Courtof the United States, it is said, have ruled tlio other way. so much tno worse men, be it said with due respect, for the State Courts, and even tho Supreme Court of the United States. If tho result at which I have arrived bo the true ono, and I submit this to the judgment of the Court, thon it is absolutely of no importance to tho success or stability of that demonstration what any Court has said or ruled about it. If they have decided contrary, their decisions, of course, are erroneous, and they beat in vain against its s tend Inst base. There are such cases. But is this Court to overrido the Constitution, because other courts, no matter of what rank or how many, have done so? If a wrong adjudication is made in one case, must every other like easo, therefore, bo also wrongly determined? ' If one man starts upon the downward road, is every other maO in the universe to follow till tho precipioe yawns sheer? When and how, in this blind adherence to acknowledged error, is the right ever to bo established? Settled? 11, no question which concern! constitutional fttedom can ever be tettled till it it edited absolutely right. You may pile decision on decision till from the summit of the mass you can scale the heavens, but it will avail nothing against the inherent, irrepressible power of the Constitution to vindicate even against judicial chicane the guarantees with which it has fortified the liberties of the cit-At some time I know not when, per-"ips it may be now there will be found some Judge, some Court oh! may it bo this Court! whioh shall, by a few fit words so fitly spoken, as to carry conviction to all hearts and heads establish the Kk.iit at once and for all coming ages. Let us see, however, precisely what tho cases cited are, and what it is that they are said to have "settled." The cases referred to by the counsel for the Federal Government as having been decided by the State Courts, are four in number: . Wright v. Deacon, 6 Serg. & Rail. G2, in Pennsylvania; Commonwealth v. Griffith, 2 Massachusetts Rep. 11; Jack v. Martin, 12 Wend. Rep. 811; and 14 Wend. Rep. in Now York, and lastly, the Sims case, 7 Cushing, again in Massachusetts. These - are., all. in which. so far as my researches have eitended, the question of the power of 'Congress to legislate urjon this matter, has been the subiect of discus sion by any State court of the last resort. Other cases there are in whioh the Fugitive Act of 1793, has i been acted upon; but none other, I think, in which the question now made was discussed. Ut these cases the hrst three arose under the act of '03; the last under the act of 1850, and this last case I shall leave for consideration to a later period of the. argument.Before, however, examining these cases, it will not be amiss to state the history of the act and the effect of its provisions: kk In 1790, some Virginian kidnapped three free lybcgroes from tho State of Pennsylvania, and carried them into Virginia. IIo was indicted for the offense in the proper court in Pennsylvania, and thereupon the Governor of that State made a requisition in due form, on the Governor of Virginia for the surrender of tho kidnapper. The Governor of tho latter State affecting to have scruples about his power to surrender, consulted the Attorney-General of that State, and finally, upon his written opinion, declined to make the surrender, on the ground that he had no power, under tho consti tution, till Congress should prescribe the ninn- ner or its exeroise. The Uovernor of renn sylvania forwarded the correspondence to Presi dent Washington, who laid it before Congress. A Dili covering mis BUDiect, originated in tho Senate; but by whom it was introduced, favored or opposed; what was the original form; what were the changes by amendment; what the disoussions upon it, we know not, since the Senate then sat with closed doors, aud no jour nal or its debates, it any was kept, has ever been published. But at length it canio down to the House in the simple form of an act to provide for the extradition of fugitives from jus tice, borne astute slaveholder seeing the oppor tunity for a valuable "compromise," added a second section, providing for the extradition of fugitives from service, and the North were cool ly presented with this alternative: ' "We, the South, will protect from punishment an your runaway criminals, unless you give up fjijl our runaway slaves." Undor this pressure, I am Borry to say, the net in both sections passed into the forms of law. Thus this famous (or why not infamous?) act found its way on the Statute Book. This history of its passage suggests a reflection not irrelevant to the case. Though the clause in the constitution stood . precisely tho same in 1791 that it had been during the ten years ' of the confederation, and though during those ten years no State had before objected or could object toits wantofpowor to surrender, yet we here find it made for the first time. Looking at the offense which tho fugitives had committed, there can he no doubt of the causo of the refusal. He had kidnapped a negro, and it is no strained inference to add, had reduced him to slavery; and thus Virginia, in order to protect the mnn-stcaler against the consequences of an act done in the interests of slavery, .committed a direct aggression upon the constitution, and this first aggression was cun ningly made the pretext of another aggression, still in the interests of Blavery, by inducing Congress to usurp the power of providing for the reclamation of fugitive slaves. And here, and then commenced the first of those assaults upon the integrity of the constitution, whioh have been constantly renewed with fresh vigor i&tery day, until what with Prigg decisions, and Dred Scott decisious, all of its ramparts have , been breached, and that instrument, designed to be the great oharter of freedom, lias boen couverted into an immense machine, which operates chiefly in two ways; one in the catching of runaway negroes, the other in planting this "abomination of desolation" in "fresh fields and pastures new.'! But to recur to the aot of '03. The third section of the act in substance authorizes the owner of a fugitive from service to seize the fugitive and tako him before any federal judge residing within the Stato, or before any magistrate of any county, city, or town corpor ate in whioh arrest is made; and on proof being mado to the magistrate that the person seized doth owe service to the claimant, it is his duty to give certificate thereof, to claimant,- which stiau do suiiicicut warrant ror removal of fugi-tive to the Stato. The last section visits with penalty or hve hundred dollars, for the benefit of olaimant, any one who sholl obstruct or hind-der him in so seising fugitive, or rescue fugitive from him, or conceal or harbor fugitive af-tor notice. As before stated, all tho Si.t ml. judications cited save one, aroso under this aot whioh b6 It noted, depends for its efficiency. holly upon the aotion of State authorities, for most of . the froe States vou can onlv find a iieimiiaiiuauii ln lH0 great proportion of tho cases, it would bo quite impracticable ui uim iiigiuve uuiuro icuorat judge. now lotus iook ni xne cases dee ded Under this act; (Mr. Wolcott hora subjected each of .-..,! theso cases to a rigid analysis, showing the precise fuels and questions involved, and then proceeded.) thus may it please your Uouors, it is seen that in nono of theso cases had any Federal functionary undertaken to execute this act, and that each of theBe cases if thoyscttlc" any thing as to the power of Congress, settle only the one point, that Congren hat power to devolve the duty of delivering up fugitive tlavet upon btate magistrate! and state officers. Let this result of the caBes be especially kept in mind. Next in the order of time, we come to the famous Prigg case, 10 Peter's Rep. 050, dopided by the Supreme Court of the United States, and which it has also said, "settles" the question. So much stress has been everywhere laid on this case that it must be thoroughly examined; and, by the blessing of God, I mean to do it justice. Let us first see the precise question it in volved: Pennsylvania, in 1820, at the request of the State of Maryland, passed an act providing for the extradition of fugitive slaves, through the nction of its own State, judges and officers, of which it is now sufficient to tho present purpose to state, that it punished, by the most severe ponaltics of tine and imprisonment, any person who should except in accordance with the provisions of that act, or of the Fugitive act passed by Congress in '93 carry any colored person out of the Stale with tho intent to reduce him to the condition of a slavo. Prigg and his co-defendants were indicted bo-fore the proper courts of York county for forcibly taking away Margaret Morgan, a colored woman, witli iutcnt to reduco her to the condition of a slave, contrary to tliiB act. Tho jury returned a special verdict, finding, among other things, that Margaret wns formerly a slave in Maryland; that five years before tho seizure she had escaped inlo Pennsylvania; that the defendants, as the constituted agents of her former master, had seized 'Margaret and children ono of whom was born more than a year after tho mother had escaped took them by force into the State of Maryland, and" there delivered tho mother and her children as slaves to her former master. Upon this vordict tho court below rendered judgment against defendant, pro forma under special legislative act; and, after some intermediate proceedings, not necessary to bo slated, a writ of error vTas prosecuted out of tlio Supremo Court of the United States to review this judgment. This is the whole case; and upon this simple statement it is obvious that tho only question before the court was the validity of this act of Pennsylvania. Accordingly, tho vory first question considored by the court, was as to the effect of tho constitutional provision upon the rights of the owner of nn escaping slave; and the court unanimously held that this provision of the compact so far executed itself as to confer upon tho owner the right of reception ; and, consequently, that the act of Pennsylvania whioh attempted to prohibit and punish the exercise of this right was void. Now, when the court had held this, the case was decided; and no question could possibly be made La that case as to the power of Congress. No matter whotber it had or had not power, when it wns once held that Prigg had, under the Constitution, without any legislation, State or Federal; nay, in spite of legislation, the right to seize Margaret; that case was ended; all other questions were coram nonjudice ; and every thing that is said about the power of Congress iB the purest obiter; which, howover forcible as a mere argument, carries with it no weight as authority whatever. ' This case then "settled" nothing as to the power of Congress, but loaves that question just as open as beiore the case was decided. It still remains, however, to examine the obiter opinion expressed by the Court, not because authority, out as presumably th stronecst presentation that can be made of the argument in favor of the existence of the power. At the very outset of the case, it is openly confessed, that in order "to free the case from difficulty," it is necessary to resort to a now rule of construction, exclusively applicable to this clause, without reference to those which generally apply to all of its othor parts and provis ion. But what authority had the Court thus to ignore all tho rules previously established by its own uniformly concurring decisions; as those alone applicable to the interpretation of consti tutional provisions, and why is it that the rules whioh lead to right conclusions in all other cases, are to be openly repudiated here? The truth is, and it is right to sneak it boldly, that the Court well knew that any rule heretofore re cognized would absolutely cxvludo the idea ot any power in CongresB, and as it had predeter mined to come to tho opposite conclusion, it be- gan its work by throwing theso rules to the winds. Having thus liberated itself from all allegiance to the rules of reason, tho law of logic and its own declared canon of interpretation, the Court proceed directly to the oft cited provis ion ot tho lourth article. Its first proposition, and one that underlies its whole reasoning, is, that "Historically it is well known that the object of this clause wns to se cure to the slaveholder the complete right and title to their slaves as property in every State into which they might escape" "and thut the full recognition of this right wns so vital to the slavoholding Stales that it Constituted a fnndn montal article, without the adoption of which tho tmon could not have been formed. It is quite difficult to speak of these two para graphs respectfully, and yet with that hdelity to truth, from the obligation of which no one can absolve himself that fidelity requires me to say, that no greater mistake as to undemablo historical fact was ever committed than is em bodied in those two assertions. All the world now knows, and I have already shown with what painful and anxious care the fro mors of the Convention slaveholders and all Madison and Mason, and even Randolph the special and ablest advocate of the slave-holding interest excluded from tho Constitution the idea that there could be property in man. But again, so far is it from being true that this claiiBO was deemed Vital to the slaveholding interest; that it was not even named in the Convention till it had been in session more than three months, and within less than six teen days of the time when the Constitution was reported oomplete; that the subject was never mentioned save by two slaveholders Butler nnd Pincknoy; that it never camo before the Convention except on two sue cceding days ; that the whole discussion on it could not have occupied ton minutes; that no complaint wns mado that any State hnd hilhorto refused to surrender fugitives; and that it was agreed to nem. con. for the obvious reason that it only embodied a stipulation to continue thut spirit of comity which the States had thereto- foro voluntarily observed in respect to tho same mnttor. I his matter was in no sense one of t h compromises of the Constitution, and was never hinted at till long after all those compromises had been dclinitely settled; and not, indeed, until after all the provisions deemed essential to be in corporated in the Constitution had been agreed on, and referred to a committeo to report back in due form. The compromises were five: 1. Power to regulate commerce. 2. Prohibition of duties upon exports. 3. Weight to bo assigned to the States. ' 4. Basis of taxation and representation.. 6. Power to prohibit African slave trade. And this subject had nothing to do with either. Founding myself on theso undeniable facts, I am justified in affirming that tho assertion, thnt tho adoption of this clause was a fundamental condition of the Union, has no foundation whatever.The Chief Justice Mr. Wolcott: I think you have omitted one statement that was made in tho Convention. Tna Attorney. General By sheer inadvertence, then, if your Honor please! ' Chief Justice Of course, sir; but (here is a statement whioh I think you will find has os-oaped your attention. Thk Attorney General Possibly; will your Honor please mention it? N - ' ' Thk Chtm Justicb Mr. Pinckney, of South Carolina, Bnkl ho would not voto for any Constitution unless it protected property in slaves. Tim Attorney General This statement of Pinckney did escnpo my attention. But the fact that no one went with Pinckney, is of tho last significance. I do not understand your Honor to any that there was any one save Pinckney took this ground, and this solitary remark of a solitary man upon a solitary occasion, certainly furnishes no justification for the broad assertion of. Mr. Justice Story that the adoption of such a provision was fundamental to the formation of the Union. But to proceed. Upon this two-fold mistake of fact, the Court assume that this clause must be so construed as to effect the object erroneously imputed to the convention in adopting it, and so they affirm "that it manifestly contemplates the existence of a positive unqualified right on the part of the owner of the slave which no btate can in any way restrain, quality, or control," and that any Stato law or Stato regulation, which interrupts, limits, delays, or postpones the right of the owner to tho immediate possession of the slave, and the immediate command of his scrviceand labor, operates, pro tanto, a dischargo of tho slavo therefrom. Tho question can never bo how much the slave is dis charged from; but whether ho is discharged from any, by the natural or necessary operation of Stato laws or Slate regulations. Tho question is not one of quantity or degreo, but of withholding or controling the incidents of a positive and absolute right." Just consider this proposition for a moment. If a Stato, undertaking to discharge the obligations of this compact, arrest one supposed to be a fugilive, gives notice to the supposed master, nnd when ho conies, says to him, "Sir! we have arrested this man as your fugitive slave, and now you have only to satisfy us thnt ho it your slave, aud we will deliver him over to you; but we can t give him till you do show that." Hub condition of delivery, it is said, "operates pro tanto a discharge, becauso it detains lain trom the "immediato possession of his mnstcr." You cannot, it is said, detain a man claimed as a fu gitive Blave, even to inquiro whether he is a slave or not; for if it shall turn out that he is such slavo, then you have been discharging him pro tanto from tho service and labor he owes his master! shall 1 stand here and bent the air.' Slnill I waste my strength and your Honors' patienco over such a proposition ns this? But this is tho foundation of the conclusion that tho States have no right to legislate. But again, this argument, if good for any thing, cuts up by the roots the power of Congress to legislate. No one will pretend or admit that Congress has any moro power to discharge, absolutely or pro tanto, the claim of the mnstcr, thnn have the States. But if the power to legislate, when vested in the States, implies the powor to regulate, that is, to prescribe condi tions, bo also does the like power when vested in Congress; aud if the provisions of a State enaotment, requiring the master to prove his claim before a local magistrate, are pro tanto a discharge, bo' also are the provisions requiring like proof before a commissioner pro tanto a discharge; nnd if the one is for that reason incompatible with the Constitution, so equally is the other. Having in this way arrived at the conclusion thattho States have no powor to lcgislate,theCourt next proceed once more to affirm "that the clause puts the right totheserviceof laborupon the same ground and to the same extent in every other State as in the State from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also; the owner must there fore have' the right to seizo and repossess the slave, which tho local laws of his own State confer upon, as property; and we all know that this right of seizure and recaption la universally acknowledged in all the slave-holding States. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject." Then, after quoting Blackstono, he proceeds: "Upon this ground we havo not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in. the Union, to seize nnd re-capture his slave whenever ho can do it without any breach of the pence, or any illegal violence. In this sense, and to this extent, this clause of the Con-Btilution may properly be eaid to excludo itself; and to require no aid from legislation, State or National." Now of this monstrous proposition I have to say ngain, not only what everybody now knows to be true that tho Constitution nowhere recognizes property in man. and theicforo nowhere recognizes tho right of private reception, which is incident only to property but that this very clauso aflirmntively excludes all possible idea of such recognition. For upon whom does this clause, by its very tortus, operato? "Persons," not properly men, not chattels. Why, if this man whom Bushnell undertook to rescue, and whom Langston undertook to rescue, was not a man, ft "person," within the ordinary meaning of that phrase, then he is not comprehended by this clause; and how. is it that they have been indicted, tried, and convicled of an attempt to violate this clauso by rescuing a "person'' so tho indictment calls (he fugitivo "John" with in its operation. I know, that, nccording to tlio Drod Scott case, and still more emphatically bv this very Prigg case, John is not a "per son," but a "thing," for this Prigg ense de clares his status in the free States to be precise ly what it wns in the slave States. But in tho slave States, John was not a "person," he was an article of property, a chattle, and nothing else. In Ohio, then, by this decision, John was not a person: it was therefore no offense to rescue him, for the fugitive act speaks of "por-sons" only, and these applicants having com mitted no crime must be discharged. - Thus, this Prigg case, in its holding that an esoapingslave is still a slave as be was in tho slave Mates, falls into the inevitable absurdity of withdrawing such slaves from the operation of this clause. which applies to "persons" only. Such is its suicidal construction. But to proceed. This decision to the contrary. 1 affirm that John was a "person" here still owing sorvioe, if yon please, to his former master in Kentucky, but yet a person and nothing else. Tho Federal constitution calls him a "person," the fugitive act calls him a "person," the indictments now before your Honors call him a "person," the conviction under which these applicants nre confined is void if ho is not a "person," and most of all, God mado him erect and stamped on him evory Attribute and characteristic of manhood. The laws of Kentucky may deny his personality, and treat him as property, but these laws liavo no extra territorial operation, nucn, thoreforo; John left Kentucky ho left that local ttatitt which tho local laws nlono gave mm while there. The laws of Kentucky were left in Kontucky, for certainly tliey could not cross tho Ohio river, the moment then, John touched Ohio he becamo invested witli the diameter istics which the constitution of this Stnlo and the Federal constitution impressed upon him. with theso and nono other. Binco these alone, bear sn'ny on the soil of Ohio, How do these regard him? , The Constitution of Ohio pronouuecs him a mnn, and, save as to tlio single right of suffrage, (and even that he may acquiro hy residence, if ho bo less than half black), he stands here on nn equality with the Governor of vour State. Subiect to the clauso in question, which I will presently consider ho tins all the rights and is entitled to an tuo pro tcction which our laws extend to any of our citizens. Be may sue and bo sued; oontraot and be contracted with; acquire, hold and enjoy property which even Ins master may not touch: give and bo given in mnrringe, nnd rear up children which, thank God! are all his own How does tho Federal Constitution regard him ? Stiiras a man, a "person," but as a person owine labor and sorvice tn Kentucky and under its local laws to his former mastor. All that the Constitution of the United States requires is tluit Ohio shall not dischargo this person from the obligation of labor and service which he owed in Kentucky under Its laws, and shall, on "claim" of tho parly to whom, by thoso laws, his labor is due, deliver up this "person" this man. It does not reoognlze tho fugitive as bound to labor here in Ohio, for his master, but as still owing it in Kentucky not elsewhere, and it requires Ohio to deliver him up, that he may be returned to Kentuoky, and there, In that Slate rendor the service which ho owes there and there alone. Like Archillcs, lie is invulnerable, save in a single spot. Subordinate only to the single, but awful contingency of a claim properly proven by the vory party no one else is whom in Kontucky he owed service; and of his return fo the condition of a slave, when he shall again come within the territorial limits of thnt State; subject, I say, to this one awful hazard, John, in Ohio, was, to allintont and purposo, a freeman. Thus this right of reception, which has no existence save as against slaves in the slave Slates, can not be asserted in the free States. Here this point might be left, but let us look alittlo further at this proposition of the Trigg case. Tho master, it is said, has, as against his escaping slave in the free States, "the samo right," to the "samo extent," and with "all the incidents" which he bad nnder the local laws of the State from which the slave escaped. So then, nil the local laws of all the slave States, with all their hideous enginory of cruelty and torture, follow a slave fleeing into Ohio; and upon its Free soil do all theso slave codes bear supreme sway? Theinm right? All the incidents? Never, never. Tho very first inoident of that right, nay, tho very essenoe of that right, is to constrain by forco tho labor of the slave I May the mnstcr erect the whipping post before your cnpitol, and uso tho lash upon his fugitive woman slavo in Ohio, if she refuso here to work for him? Another incident of that right is to brand the slave or slit his cars to mark him as his property! Mny that be done in Ohio hy the owner of a runaway negro? Another incident is that on the rule of pertut tequitur venterum, tho offspring of a slave mother is also a slave, though (ho father be freo. But may the slaveowner claim as his property the issue of a fugitive slave woman who has here intormarried with a freeman? Still another incident is the right of the master to sell him! Can he open a slave auction here for the fugitive? Another incident is the right hy the law of tlio slave States, to kill the slave if he resist by force, tho master's attempt to punish him? May that be dono here? Is the right guaranteed by the Consitution to the master to murder in Ohio his fugitive slave? Don't lotit be said that this is exaggoration. For by precisely tho same process by which establish here the right of recaption, you equally establish here overy othor incident of this system. No matter how hideous it may be. Indeed, that is the very major proposition, for say the court, tho master has here "the same right" as to a runaway Blave, which he had in the slave States, "with all the incidents" which the local law gave, that local law (such is the deduction,) confers the right of recaption,' therefore that right exists in the State to which the slave has fled. If ono incident given' by the local law fellows the fugitive here, so do all. What some of these incidents are wo have seen. Again I say never! , We won't have the whipping post in Ohio. We won't have the knife, and the branding iron, or the revolver here. We won't havo the barracoon here. We won't lcgalizo murder here. . If a slaveholder whip his fugi tive Blavo in Ohio, it is a battery, and be shall go to jail for it. If ho slit his ears, it is maiming, and ho shall go to tho Penitentiary for it. If he kill the slave for resisting the lash or the branding iron, it is murder, and be shall hang for it, though there were a thousand Prigg cases, as Georgia hung Graves and Tassells over the writ of error ot this same Supreme Court God bless Georgia for that valiant and beneficent ex ample! , And hore I leave to the just contempt and just ndignation of all freemen this hideous dogma of the asserted power of recaption. It has no existence; and this point is of vital importance, for Bushnell is convicted only of obstructing an attempt at a moro private recaption, and if this power liaB no constitutional warrants, then Bushnell is unconstitutionally restrained of his liberty, nnd must be discharged. The next proposition of the rriggcase Is, that tho simplo right of recaption must, in many in stances, prove unavailing; tlio owner may not be able to lay his hands on the slave; persons may secrete him; local legislation may limit him as to the proofs of ownership ; or the courts in which he shall sue or the proeess he may re sort to, or fail to aid him in any way, so that it ib said if the Constitution gave nothing but the power of simple recaption, it would prove a de lusion and a snare; and the inforence is that the Congress must havo power to legislate. Now, all this Bupposes thnt the States would wantonly refuse to fulfil their solemn compact, But what right had the court thus to insult the whole community of free States ? What in their past history justified this calumniation ? On the contrary, I say that in spite of the odious nature of the duty which this compact imposed upon the tree Mates, they lulhlled it with too much alacrity, too much fidelity too few safe guards to protect tho citizen, until this very I'ngg case withdrew tho subject from their eon I nil ; and Congress, following its lend, endeav ored to givo the force of law to an act which not merely humbled the sovereignty of the States, but struck down, by a single blow, all tho constitutional guaranties of the liberty of the white citizen ; an act which no man can read without the utmost indignation. But, again : if that was the theory if the convention did not mean to trust to the legisla tion ot tho btatcs, just as little would they have trustod to the legislation of Congress, controll ed as that has always been, in one branch, at least, by the Northern States; and the Constitu tion itself would have prescribed the specifio mode, and leaving nothing to the States either in or out of Congress. But still again, when before was tho falsoly lm puted infidelity of the States mado the grounds for Implying in Congress power to remedy such asBiimod possible or probable neglects? And how and where in the Constitution, do you find any power In the Congress to assume a duty belonging to the Statos, because tho States refuse to dischargo itr Ao where! The Court next proceed to assume that this clause "implies at once a guaranty and enjoins a duly, that it contemplates some remedial measure "beyond tho rights of recaption; that many quostions arise as to the nature of this contemplated remedy; that legislation alone could detormine these questions; that whore i duty is enjoined the ability to execute it is inv plied; that the "clause is found in a nationnl Constitution, not that of a State; 1 that "it does not point out any Stato functionaries who shall executo it," and that "the natural if not tho necessary conclusion is that in the ahsenoe of all express provision to tho contrary, the goncral government is charged with the execu tion of the duty, and has therefore powor to ex ecute it. It will bo found quite difficult to find elswhere acoursoof reasoning, which violates bo many canons ot Constitutional interpretation. It not only starts out with a puro assumption (for where is tho foundation tho nssortion implies u nuarantit and who is tho guarantor. who the Biiarantcof and whore are any words of guaranty?) but oven with tho aid of this as sumption can it uorive power oi legislation in Congress, only by a series of implication of not less than four successive gradations, in utter contempt of its own settled rule that the Congress had no implied power, save that whioh is purely auxiliary to Ihoso.oxpTcssiy granted, ror see, it is just said that a guaranty and a duty ii im plied, (implication 1); next thnt the naturo of the duly implies the necessity of legislation to its effective discharge, (implication 2); that, as tho Statos are not specially named, and the clause is found in the National Constitution, it is to be implied that tho duty is injoiucd upon the Fed eral Government, (implication 8); that a duty in nincd implies the power to execute it, (impl cation 4); and hence tho Congress has power to legislate upon this subject, need 1 slop here to janBwgaBajaMHHauiaauiaMii arguo that this process can never bo resorted to I In order to crcuto a power In tho Federal Gov eminent, or that if this piling of implication on implication is permitted, that tho Federal Government may bo proved to have power over every conceivable object? But again, the great step in thisreasoning, by which the Court attempts to show that Congress has the power, consists in tho assertion that becauso tho clause does not specially devolve the duty on the States and designate State functionaries for its dischargo, it is thorofore to bo intended that the duty is to bo enjoined upon and the power given to Congress. The bare fact that it is found in the Constitution is of no significance, for there are many provisions there which do not grunt power to Congress and the rulo is, that if power lie not givon in torms it is not given at all. Still less important, that it docs not point out Slate functionaries, for if the States themselves were to execute tho olauso, the selection of means to executo must, of necessity, be left to the States themselves. But neither, on tho other hand, docs it point out federal functionaries, and this very omission is of stern significance, and conclusively proves that it is the States who are to execute it; for the rulo of tho Constitution itself is, that all agencies and powers not granted to the Federal Government aro reserved to tho States and the people. And for tho Court to assume that wherever State authority is not specially mentioned, federal authority is to be implied, is not only a llaarant violation nf nil the principles hcrelofore'asscrtcd by itself, but a plain nullification I moan just what that word imports of the tonth amendment, which declares all powers not delegated, to be reserved that amendment which Jefferson so emphatically and so truly said was the "foundation corner stone of fhe Constitution." This reasoning of the Court I also loavo to the judgment and common sense of this Court. But next: The Court next proceeded to say that (he "claim" mentioned in this clause Contemplated a demand "mado by the owner of possession for the delivery of his slave," and must of conrso be mado against some person (I add parenthetically that it must be against tho slave himself, since usually he is in our possession,) that this claim involves "a right of property capable of assertion in a Court of justice between ad verse rartics;" so that it "constitutes in the strictest sense a controversy between the parties, and ft 'case' arising under the Constitution of the United states, within tho express delcga tion op judicinl power givon by that instrument." "CongreBS then may cull that power into activity ' so as to "give effect to that right," and "if so may proscribe tho modo and extent to which it may be applied, and how nnd under what circumstances the proceedings shall afford complete protection and guaranty to the right." Still again implication on implication. Now I agree, nay I insist (and 1 mean to prove it beforo I close) that tho claim mentioned in this clauso constitutes a controversy between adverse parties not as to a right of property, but a right of liberty the master being one party, the alleged fugitive the other, and there fore that it is a suit, a suit at law, to be deter mined by some judicial powor. Let this point in tho Prigg case not be forgotten. But I stop hero. I do not agree that this suit is to be de termined by the Federal judiciary, for in all the Constitution I find no power over this subject grnnted expressly to that judiciary; none even by necessary implication. But without stopping now to controvert this at length, I have to say that this position proceeds upon the theory, for tbat is the argument of the Court, that a grant of power to the Federal Courts to determine certain casos implios a co-extensive power in the Congress to legislato upon the subject matter of all these cases. Surely, surely this can not bo. By precisoly the same process of reasoning, heaping inferred power on inferred power, the Federal government would soon ab sorb all the powers of all the States. llius Jurisdiction is given to the federal Courts over suits, and appellate jurisdiction over the State Courts in certain cases between citizens of different States. The subjects of theso suits are as various as litigation itself, land titles, notes, bills, policies of insurance, trespasses, frauds, matters of copartnership, and if a. power of legislation over theso subjocts can be grafted by implication upon a judicial power, Congress may assume the whole power of regulating these matters within the States, and ac complish at a blow the overthrow of State sov ereignty Whatever power the Federal Judioiary may have over this subject is preventive, not nctive to restrain, not compel. If a Slate should by legislation attempt to emancipate nil fugitive Blaves within its limits, perhaps tho Supreme Courtof the United States, exercising its appel late jurisdiction, might declare such hostile leg islation void, so far as respected the rights of the parties to the case then before it for ad indication. But this is the utmost scope of its power, and, as for Congress, thnt I have shown has none. The truth is that whatever power tlio fedcrul government has in this class of cases, if indeed it have any, is just the power of the judiciary of determining any case in which the question of tho validity of unfriendly state legislation may be involved; and, second, power in Con Kress to provido an avenue by which such i case may reach the federal tribunals ; but not all powor to legislate upon the subject matter of the litigation In fine, of this whole opinion, it may be said that all or its reasoning consists oithcr in an un founded and pure assumption of the very ques tion to be decided; or if the premise does not, in every instance, go to quite the length of begging the entire question, it does in every instance assume as its predicate some position false in fact or false in logio, and even upon this unstable basis is driven to the accumulation of implication on implication, in order to show power in Congress. The argument of the Court next becomes again historical, and a most unfortunate attempt is made to show that cotemporary construction and continued usage have practically settled the question in the' same way. And, first, tho act of 1703 is cited, which, it is said, wns passed immediately after the adoption of the Constitution by Congress, composed in part at least of its framers, has Bince beon uniformly acquiesced in and executed by the States. But of this I have just to remark, first, that this act did little more than organize tho States themselves to execute their constitutional duties undor this compact, that the oases which arose were only few in number, that though objectionable in Borne of its features, it was not npprossivp-ly enforced, that it had nono of the infamous provisions which characterize fhe Draconian Act of 1850, bo that public attention wns not roused, and that since the execution of the act was thus mainly left to tho States themselves they might woll acquiosce in it not as having any binding force, but as furnishing a convenient mode of performing a duty which they had stipulated to discharge. Again, however, this cotemporancous construction and long usnge proves entirely too much, for so far were the States from supposing thnt they hod no power over this subject that most of thorn legislated upon this vory point. . If the fact that Congress passed tho acUif '03 is of any weight as touching tho construction of tho Constitution, surely tho coteniporoneous notion of State Legislatures is entitled to no loss weight. Now every slave State, at an early period, passed laws providing for the Biirrendor of slaves escaping from other States inlo our limits. . Nor were the free States themselves unmindful of this obligation; nor odious as was tlio duty, did they seek to Bhelter themselves from its performance behind the miserable pretense that thoy had no power. Thus Connection! enactod an extradition law upon this subjoct. New York, Now Jorsey, Pennsylvania, Indiana aud Illinois each passed one, and peihaps each of the other States, though as to them I havo no knowledge. Ohio too, responding to the request of Keutucky, prescuted, in ft most imposing form, enacted ft most stringent Btatuto in fulfillment of this compact. The contemporaneous construction and usage of ths Slates then proves thnt tho power belonged, not to tho Federal Government, but to the .States. But still more, the Supreme Court of the United States has again and again ruled that no part of tho power of the Federal Government, judicial, legislative or executive, could be devolved on Slnlo legislators, State judges, or State ministerial officers. Nay, in this vory Prigg case it was established, if any thing was, that Congress had no power to compol State authorities lo execute the duties imposed on them by the aot of '03, . and if no power to compel, then it has no authority to devolve the duly on them; for authority to prescribe a duty implios power to enforce its discharge. Now tho only feature of theactnf '03 which had any efficiency, tho only one therefore, which was genornlly called into aotion, was that whioh devolved its execution on State judges and State officers. The only usage under, and acquiescence in its provisions, was in that provision which enjoined powers on State authorities. Rutin this ros poet, say the court in this identical case, tho act of '03, the cotcmporano-ous exposition, tho usage and long acquiescence prnvo nothing. In spite of all these, wo now affirm thnt Congress had no authority to devolve the execution of this power on Slate authorities. If cotemporaneous construction nnd usngo can't prove that a supposed power has beon rightfully exercised, still less, I submit, can this judicially condemned exposition and acquiescence boused to prove.the very existence of tho power. Hero then, tho argument drawn from this sourco is shattered to fragments by this very Prigg case, though in tho same breath cited by it ns authority, and is buried beyond the reach ot resurrection. Let no one who respects that tribunal, or who respects the dead seek again to invoko its false and ghastly presence. But' the decisions of tlio State courts which I have already criticized, next cited by tho court to fortify its conclusion. - But as we have seen, the question in each of these cases was solely as to the authority of Congress to confer this power nnd impose this duty on Stnlo authorities, and tho one point decided by them wns thnt Congress had that very power. Theso very cases are overruled, therefore, distinctly by this same court, not only in Martin's lesso v. Hunter, but in this identical Prigg case, and yet tho court, while in the very act of so overruling them upon tho only point affirmed by them, cite fhem as authority for its own opinions. Let these enses, slain by the same relentless hand bo buried, too, in the samo grave where their kindred "cotemporaneous exposition and long usage" now sleep their last sleep. I have thus considered every position upon which tho obiter dicta in the Prigg case are founded. As authority it has no weight whatever. How far will your Honors deem it prudent voluntarily to commit yoursolves to its opinions; for you must do it voluntarily ft at all. Let the result answer. With a few more words which seem needful to its just appreciation, I take leave of tbat case forever. While all the judges concurred in rever sing tho judgment of the oourt bolow, yet Bald win, J., did soonly on the ground thnt the verdict found Margarettohavebccn aslave;and llie owner could not be punished as a kidnapper in reclaiming her. He dissented from the obiter that the States had no power, or that Congress bad any to legislate upon this subject. This left only eight judges, of whom five held that the power was vested exclusively in Congress; while three (Taney, Thompson and McLean,) hold that it was concurrent in the States. But of the four who hold it was exclusive, three delivered separate opinions, each stating that he could not concur in the reasoning by which his brethren had arrived at that result; of the three who held thai ih StMea vouourreiil. power, each delivered separate opinions, differing from his brethren in its reasoning; while of the eight who thought Congress had power, either exclusive or concurrent, Bix delivered dis tinct opinions, each ono demonstrating .that the principles upon which the others place their opinion is altogether wrong. Thus five arrive, each in his own separate way, at the result that this olause enjoins a duty on Congress, and then upon the principle that where duty exists, power to executo is implied and that is their main argument hold that the power is in Congress; while the other three, each in his own mode, arrive at the opposite result, namely, that the Constitution enjoins this precise duty on the Stales. These latter three thus demolish the position on which the other five erect their argument; while the logic of the five applied to the premise of the three that thisduty is enjoined on tho States destroys utterly tho common conclusion of the wholo eight, by demonstrating that the power belongs exclusively to the States. And this obiter opinion, which, beginning with a gross mistake as to the faots of history, without persisting in which its conclusion ennnot be sustained, and proceeding on this mistake to erect a fabrio of reasoning which utterly overthrows every rule of constitutional interpretation hitherto declared to bo unnlternblo; which ignores the maxims that every presumption is to be made in favor of liberty; which not only over-rules the authorities on which it assumes to rely for support, but in which each judge who aided in declaring it, is pronounced by his brethren to have boon wholly wrong in his reasons for so declaring it, thus literally devouring itself this extra judicial opinion, it is now said, has " tettled" the rights of thirty-three States, and grave questions touching tho liberties of twenty"-lhrce millions of, people. Has it ? But , I am reminded that the Prigg case has since been twice affirmed by this same Court in the Jones and Van Zandt, and the Booth case. Of Course it has. Did any body knowing how tbat Court is constituted (and I must allude to that presently) expect them to do ought but affirm it? Didn't they decide the Dred Scott case too? Now how did they affirm it? When these two subsequent cases come before them, and in ono of them the obiter of the Prigg case was utterly demolished by counsel, did the Court again consider the question according to the invariable custom, where a question depends on a single deoision, whioh is assailed? No! but seizing hold of the extra judicial opinions in tho Prigg ease, they say adroitly, if not truly; that decidet the question; thus giving their own simple obiter the forco of nn absolutely conclusive adjudication! This is ret adjudica-ta with a vengeance. Those, mny it please your Honors, are the cases in which this question has boen considered by the highest Federal Court. Before however taking leave of thnt Court there is one consideration affecting the weight which ought, lo be given lo its opinions, on this clnss of quostions. It pains mo that the fact to which I nm about to allude is so; but my sonse of duty will not allow me entirely lo suppross it. When the extra-judicial opinion ot any Court is passed upon me ns foreclosing by its simple assertion any question which concerns the sovereignty of the Slnlo, or tho natural and constitutional right of the oitizen, I can not refrain from considering the clnim to confidence whioh tho dictum of its individunl members michtposscss. My inquiry would not belimited to their learning and ability, but I should ask of tho school of government, in which they had boon trained, of their personal indopondoncc; of their freedom trom bias or extra-judicial in fluenccs; and of thoir general fidoliiy to the great principles which, underlie allr govern ments. Ln mo, men, bnrely,- and with as much reservo as the truth will pormit, allude to the manner in which this Court is constituted; giving voice only to what is in every man s head, and on evory man s tongue, when the relations of this Court to any question connected with slavery is mentioned. How, thon, is this Court constituted? Five of tho nine Judges who compose it aro themselves slaveholders, and thcroforo, directly and personally interested in all these questions. The other four are aelectod from the Frco States, but upon what motives Ond by what influences aro these selections gov erned ? Let one or two well known faots an- wr. ' ' During tho administration of President fyl'r, Mr. Just ieo Thompson, then resident inNew York, a very ablo nnd learned judge of that court, died. As his successor, tho President first nominated John C. Spencer, also of New York, one of the most learned, able, and eminent jurists in this or any oilier country, ine senate did not. confirm the nomination of Spenoor. Why? The President next sent in the namo of thnt accomplished judge. Chancellor Walworth, the man, be it remembered, who, as Chancellor of the State of New York, had, many years beforo, when the case of Jack against Martin was before the Court of Errors of that State, declared that the Congress ' had no power to provido for the reclamation of fugitive slaves. , . . - Of Walworth's fitness, there could be no man-nor of question. The Senate did not confirm the nomination of Walworth. Ajjain, why? President Tyler than nominated Mr. Justice Nelson, who, when this same oaso of Jack against Martin, was before the Supreme Courtof New York, had, as ono of the judges thereof, delivered an elnborato opinion in which he affirmed that Congress had exclusive power to legislate for the delivery of fugitives from sorvioe. Of Mr. Justice Nelson, it is no disrespect to say that in none of the qualities which go to make up the great judgo, would either Spencer or Walworth suffer by any comparison with him. The Senate did confirm Justice A'elson. Slill again, whyt These undeniable facts warrant ,oo in declaring, as I do here and now emphatically declare, that this Supreme Court of the United Stales is a seotionnl court, composed of sectionnl men, judging Beolionnl questions upon sectional in-flucnceB. And hero I take leave of the Supreme Court of tho United Slates and its opinions on the question. Slill again, however, it. is said that some of the Stato Courts have, since the Prigg decision, ' declared their adherence to it. This is true, ' hut every ono has so adhered on the assumption that the questions discussed in that case were ret adjudicata. How unfounded that assumption was we have scon. Theso cases all revolve ! about the Prigg case, leaning on that for support, not fortifying it; and if that can't stand alone, theso mutt fall with it. Let us sum up now tho authority relied on to support the power of Congress. Three or four cases in the Stale Courls prior to the Prigg case, and virtually overruled by that; then the cases of Prigg; then tho cases ofVan Zandt and Booth, and a few enses in the State Courts; but every enso standing on tho protended authority of Prigg alono. Now, if instead of theso few scattering cases, resting on a singlo extra judicial assertion mistaken in its fuels and erroneous in its law nnd on an intermittent usage pronounced to be wholly wrong, I hnd found a thousand cases,-and the continuous, unbroken usage ot centuries, I should still insist that tho question was not settled; if, upon examining the settlements, it was clearly proved to be wrong. I repeal again, that no question which concerns the liberties of the citizen can be settled till it is set- tied exactly right. Tho pathway of judicial history is strewn with wreck upon wreck of decisions, and with the broken fragments of usage on usage, by which Power has attempted and though successful for a time vainly attempted ' to fetter or undermine the rights of properly, liberty, and life. In adverting to this subject, I cannot forget that the raising of ship money was practiced for years, and the validity of that practioe reoog-' nized time and again by Courts till the days of Hampden, when its illegality was so Btrongly demonstrated that the same Courts, ' composed of different judges, were obliged to docide that, in spite of usage and preoedent, the power was an usurpation of the ancient and undoubted privileges of Parliament. I remember too that . General Warrants, though plainly prohibited by Magna Charta, had been constantly resorted to in every reign of every king for oentunes; that up--on elaborato argument aud consideration, all the English Courts had, by a series of deoisions, which you cun almost count by the score, judicially affirmed thoir lawfulness, until 8ir John '' Pratt, afterwards Lord Camden, by bis great judgmontintheeaseof Wilkes, overturned from its foundations this usage, hoary with the age nf centuries,cntrenchcd behind almost countless precedents, and in a single moment, forever established for the Anglo Saxon race an unalterable exemption from the exercise of this arbitrary power. More, and most of all, I remember that, though the Congress of the United States had from the very foundation of the government,, nnd for an uninterrupted period of sixty years,, assertod and exercised the power of legislating for the torritorios; though every President, from Washington to and including Polk, had officially approved its exercise; though the Supreme Court of the United States had by a solemn and unanimous judgment pronouuoed by the revered Marshall affirmed . the undoubted existence of this power, and though during all this time; no man had hinted a doubt as to its validity, yet we all saw in this same Supreme Court, the temple of freedom, which, by the cxereise of this power, we had been almost twice forty years in building, torn down in a single day! No; I am wrong. It was not torn down, but snly not, becauso of the impotence of these judges to shake its stable base. And now, when I am pressed with any deoision of that oourt as concluding any right of the citizen, I reply simply and only, "Dred Scott! Shall that court extort more respect for its decisions than itself yields to them? If so much, usage and precedent may be overturned in the interest of slavery, surely, surely, an extra ju-dioial opinion hi ay be well disregarded in the interest of constitutional liberty. ' If, then, your Honors, looking to the text of the constitution, shall be clearly, decisively satisfied that the Congress has no power to legislate in aid of the reolamationof fugitives from service and that, I submit, has been demonstrated then, in the name and by the authority of that constitution, the Supreme Law, binding alike Judges, and Presidents, and Congresess, by its absolute power, I invoke of your Honors nay, I might not improperly demand the restoration of these applicants to that liborty of which they are now restrained only by a flagrant usurpation,' on the part of the Federal Government, of the undelegated power distinctly reserved to the States. - . 1 And here, if my own personal convenience alone was consulted, I should leave this ease. Perhaps it ought to be left here, but the application involves other questions of the graveBt moment, which it seems to be my duty yet to consider.My noxt proposition is, that if against as it seems to me all human probability and reason your Honors shall be of opinion that Congress has some power to legislate upon this matter, still, the act of 1850 is in its essence and structure, a violation of the Constitution. And now I go back again to the clause itself, which provides "that the fugitive person who owes labor or service, shall be delivered up on claim of the party to whom such labor or service is dut" . By the preceding section, a fugitive person who ' is simply charged with crime is to be delivered up. - Here the person who is to be delivered np Is not a person who is charged with owing labor or service, but only one who in very fact, owes it. Tho first condition of delivery then, is, that he owes labor and service; the second, that , he has escaped. When is he to bo delivered up? Of course, not until it is shown that he owes that labor or, service. How is the delivery to be made? On claim of the party to whom that labor or service is due. Here, then, are three questions of faot to be determined before the obligation to deliver becomes operative. 1st. That the person owes labor and sorvice. 2d.. That he has escnped; and 8d. Thnt he owes such labor or servioe to the very person who de-' munds his delivery. But how is the existenos of these conditions to bo ascertained? Whys, claim that Buch service or labor is due must be first made, and the olaimant is denominated by the Constitution itself a "party." - But the olaim and I hero quote from the Wisconsin case roust be made of soma one, and srdinar- ' ( Concluded on Fourth Page.) i 1: ; n.i i i i I I ! it