The compact regarding public records, together with these various propositions, was referred to a committee, on which were Mr. Randolph and Mr. Wilson, with John Rutledge, of South Carolina, as chairman. After several days, they reported the compact, with a power in Congress to prescribe by general laws the manner in which such records shall be proved. A discussion ensued, in which Mr. Randolph complained that the "definition of the powers of the Government was so loose as to give it opportunities of usurping all the State powers. He was for not going further than the Report, which enables the Legislature to provide for the effect of judgments."[168] The clause of compact with the power attached was then adopted, and is now part of the Constitution. In presence of this solicitude for the preservation of "State powers," even while considering a proposition for an express power, and also of the distinct statement of Mr. Randolph, that he "was for not going further than the Report," it is evident that the idea could not then have occurred, that a power was coupled with the naked clause of compact on fugitives from service.
At a later day the various clauses and articles severally adopted from time to time in Convention were referred to a committee of revision and arrangement, that they might be reduced to form as a connected whole. Here another change was made. The clause relating to public records, with the power attached, was taken from its original place at the bottom of the clauses of compact, and promoted to stand first in the article, as a distinct section, while the other clauses of compact concerning citizens, fugitives from justice, and fugitives from service, each and all without any power attached, by a natural association compose but a single section, thus:—
"Article IV.
"Section 1. Full faith and credit shall be given in each State to the public acts, records, and judicial proceedings of every other State. And the Congress may by general laws prescribe the manner in which such acts, records, and proceedings shall be proved, and the effect thereof.
"Section 2. The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.
"A person charged in any State with treason, felony, or other crime, who shall flee from justice, and be found in another State, shall, on demand of the Executive authority of the State from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime.
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor, but shall be delivered up on claim of the party to whom such service or labor may be due.
"Section 3. New States may be admitted by the Congress into this Union; but no new State shall be formed or erected within the jurisdiction of any other State, nor any State be formed by the junction of two or more States or parts of States, without the consent of the Legislatures of the States concerned, as well as of the Congress.
"The Congress shall have power to dispose of and make all needful rules and regulations respecting the territory or other property belonging to the United States; and nothing in this Constitution shall be so construed as to prejudice any claims of the United States, or of any particular State.
"Section 4. The United States shall guaranty to every State in this Union a republican form of Government, and shall protect each of them against invasion, and, on application of the Legislature, or of the Executive (when the Legislature cannot be convened), against domestic violence."
Here is the whole article, in its final form. It will be observed that the third section, immediately following the triad section of compacts, contains two specific powers,—one with regard to new States, and the other with regard to the public Territory. These are naturally grouped together, while the fourth section of this same article, which is distinct in character, is placed by itself. In the absence of all specific information, reason alone can determine why this arrangement was made. But the conclusion is obvious, that, in the view of the Committee and of the Convention, each of these sections differs from the others. The first contains a compact with a grant of power. The second contains provisions, all of which are simple compacts, and two of which were confessedly simple compacts in the old Articles of Confederation, from which, unchanged in character, they were borrowed. The third is a twofold grant of power to Congress, without any compact. The fourth is neither power nor compact merely, nor both united, but a solemn injunction upon the National Government to perform an important duty.
The framers of the Constitution were wise and careful, having a reason for what they did, and understanding the language they employed. They did not, after discussion, incorporate into their work any superfluous provision; nor did they without design adopt the peculiar arrangement in which it appears. Adding to the record compact an express grant of power, they testified not only their desire for such power in Congress, but their conviction that without such express grant it would not exist. But if express grant was necessary in this case, it was equally necessary in all the other cases. Expressum facit cessare tacitum. Especially, in view of its odious character, was it necessary in the case of fugitives from service. Abstaining from any such grant, and then grouping the bare compact with other similar compacts, separate from every grant of power, they testified their purpose most significantly. Not only do they decline all addition to the compact of any such power, but, to render misapprehension impossible, to make assurance doubly sure, to exclude any contrary conclusion, they punctiliously arrange the clauses, on the principle of noscitur a sociis, so as to distinguish all the grants of power, but especially to make the new grant of power, in the case of public records, stand forth in the front by itself, severed from the naked compacts with which it was originally associated.
Thus the proceedings of the Convention show that the founders understood the necessity of powers in certain cases, and, on consideration, jealously granted them. A closing example will strengthen the argument. Congress is expressly empowered "to establish an uniform rule of Naturalization, and uniform laws on the subject of Bankruptcies, throughout the United States." Without this provision these two subjects would have fallen within the control of the States, leaving the Nation powerless to establish a uniform rule thereupon. Now, instead of the existing compact on fugitives from service, it would have been easy, had any such desire prevailed, to add this case to the clause on Naturalization and Bankruptcies, and to empower Congress to establish a uniform rule for the surrender of fugitives from service throughout the United States. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would be superseded. The National Government would have been constituted, like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States. But no person in the Convention, not one of the reckless partisans of Slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been as distinctly denied.
The fact that the provision on this subject was adopted unanimously, while showing the little importance attached to it in the shape it finally assumed, testifies also that it could not have been regarded as a source of National power for Slavery. It will be remembered that among the members of the Convention were Gouverneur Morris, who had said that he "NEVER would concur in upholding domestic slavery,"—Elbridge Gerry, who thought we "ought to be careful NOT to give any sanction to it,"—Roger Sherman, who "was OPPOSED to a tax on slaves imported, because it implied they were property,"—James Madison, who "thought it WRONG to admit in the Constitution the idea that there could be property in men,"—and Benjamin Franklin, who likened American slaveholders to Algerine corsairs. In the face of these unequivocal judgments, it is absurd to suppose that these eminent citizens consented unanimously to any provision by which the National Government, the creature of their hands, dedicated to Freedom, could become the most offensive agent of Slavery.