Charles Sumner: his complete works, volume 10 (of 20)

by Charles Sumner

AUTHORITIES AGAINST THE POWER OF CONGRESS.

The Committee do not leave this conclusion to rest merely on unanswerable reason. Authorities add to the testimony.

Here is the judgment of Chancellor Walworth, of New York, pronounced in 1835, before this subject had become the occasion of political strife. The testimony of the learned Chancellor is the more important, when it is considered that he has always acted politically with the Democracy, which has been the support of Slavery.

“I have looked in vain among the powers delegated to Congress by the Constitution for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of power, and it does not appear to be embraced in the general grant of incidental powers contained in the last clause of the Constitution relative to the powers of Congress. The law of the United States respecting fugitives from justice and fugitive slaves is not a law to carry into effect any of the powers expressly granted to Congress, ‘or any other power vested by the Constitution in the Government of the United States, or any department or officer thereof.’”[353]

Here, also, is the judgment of Chief Justice Hornblower, of New Jersey, pronounced in 1836. Having shown that the clause in question confers no power on Congress, he proceeds as follows.

“In short, if the power of legislation upon this subject is not given to Congress in the second section of the fourth article of the Constitution, it cannot, I think, be found in that instrument. The last clause of the eighth section of the first article gives to Congress a right to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States, or in any department or officer thereof. But the provisions of the second section of the fourth article of the Constitution cover no grant to, confide no trust, and vest no powers in, the Government of the United States. The language of the whole of that section is to establish certain principles and rules of action by which the contracting parties are to be governed in certain specified cases. The stipulations respecting the rights of citizenship, and the delivery of persons fleeing from justice or escaping from bondage, are not grants of power to the General Government, to be executed by it in derogation of State authority, but they are in the nature of treaty stipulations, resting for their fulfilment upon the enlightened patriotism and good faith of the several States. The argument in favor of Congressional legislation, founded on the suggestion that some of the States might refuse a compliance with these constitutional provisions, or neglect to pass any laws to carry them into effect, is entitled to no weight.”[354]

Afterwards, in a published letter of 1852, the Chief Justice says:—

“Be assured, my dear Sir, my judgment, whatever it may be worth, has been for years, and now is, in perfect accordance with yours in relation to the unconstitutionality of the Fugitive Slave Laws of 1793 and 1850.”[355]

Other judicial opinions might be adduced; but, as they have been pronounced since controversy on this question, they would be less regarded.

There are opinions, pronounced in the Senate, which, from the characters of their authors, are entitled to peculiar consideration.

It will be remembered that Mr. Webster gave his support to the Fugitive Slave Act of 1850; but, whatever may have been his vote, so far as his personal authority could go, he condemned the Act as unconstitutional. Here is his opinion, in the famous speech of the 7th March, 1850.

“I have always thought that the Constitution addressed itself to the Legislatures of the States, or to the States themselves. It says that those persons escaping to other States ‘shall be delivered up,’ and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me the import of the clause is, that the State itself, in obedience to the Constitution, shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now.”[356]

“I have always entertained that opinion, and I entertain it now.” Such are the emphatic words by which Mr. Webster declares his judgment of the unconstitutionality of this Act.

He was not alone. Mr. Mason, the actual author of the Act of Congress, exposed its unconstitutionality in the very speech by which he introduced it.

“In my reading of these clauses of the Constitution for extradition of fugitives of both classes, I advance the confident opinion that it devolves upon the States the duty of providing by law both for their capture and delivery.… I say, then, Sir, that the true intent of the Constitution was to devolve it upon the States, as a federal duty, to enforce, by their own laws, within their respective limits, both these clauses of extradition.”[357]

And Mr. Butler, of South Carolina, at a later day, said:—

“Under the Constitution, each State of itself ought to provide for the rendition of all fugitives from labor to their masters. This was certainly the design of the Constitution.”[358]

Such are some of the authorities, judicial and political, by which Congressional power over this subject is denied. And yet, in the face of all authority, and in defiance of reason, Congress assumed this power. It was done at the demand of Slavery, and for the protection of Slavery. Of course, such an assumption of undelegated power was a usurpation at the time, and is a usurpation still,—doubly hateful, when it is considered that it is a usurpation in the name of Slavery. It is hard to think that Congress was driven to unconstitutional assumption in such a cause, and that, contrary to sovereign rules of interpretation, it leaned to Slavery rather than to Freedom. But the time has come at last when it may recover the attitude belonging to it under the Constitution.

In advising the repeal of the Fugitive Slave Act, it is enough to show that it is founded on usurpation by Congress of power not granted by the Constitution. But, even admitting the power, a slight examination will show that it has been executed in defiance of the Constitution.

The constitutional objections to the Fugitive Slave Act are abundant. It is not too much to say, that in every section and at every point it is repugnant to admitted principles of Constitutional Law.