UNCONSTITUTIONAL USURPATION OF POWER BY CONGRESS.
Forgetting, then, for the moment, the Preamble of the Constitution, which speaks always for Justice and Liberty,—forgetting, also, the venerable maxim of the law, that “we must incline always in favor of Freedom,” and likewise that other maxim, that “he is impious and cruel who does not favor Freedom,”—refusing, according to the requirement of law, “to catch at anything in favor of Liberty,” and, in spite of all received rules of interpretation, assuming that the words of the fugitive clause adequately define fugitive slaves,—the question then arises, if this clause, thus defiantly interpreted, confers any power upon Congress.
Clearly not.
Search the Constitution, and you will find no grant, general or special, conferring upon Congress power to legislate with regard to fugitives from service or labor. In the general catalogue of powers this is not mentioned; nor does it appear in any special grant. There is nothing in the clause itself, there is nothing in any other clause, applicable to this pretended power. The whole subject is left to stand on a clause which, whatever its meaning otherwise, plainly on its face is only a compact, and not a grant of power. And in this respect it differs on its face from other provisions of the Constitution. For instance, 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 grant, these two important subjects would have fallen within the control of the States, the nation having no power to establish a uniform rule thereupon. Now, instead of the existing compact on fugitives from service or labor, it would have been easy, had any such desire prevailed, to add this case to the provision on naturalization and bankruptcy, and empowered Congress to establish a uniform rule for the surrender of fugitives from service or labor throughout the United States. Then would Congress have had unquestionable jurisdiction. But nobody in the Convention, not one of the hardiest partisans of Slavery, presumed to make this proposition. Had it been made, it is easy to see that it must have been most unceremoniously dismissed.
The genius of the Common Law, to which our ancestors were devoted, cried out against any such concession. If we refer to its great master, Lord Coke, from whose teachings in that day there was no appeal, we find its living voice. In the Third Institute he thus expresses himself: “It is holden, and so it hath been resolved, that divided kingdoms, under several kings in league one with another, are sanctuaries for servants or subjects flying for safety from one kingdom to another, and, upon demand made by them, are not, by the laws and liberties of kingdoms, to be delivered.”[348] Unquestionably, if such “sanctuaries” may be overturned, it can be only in a manner consistent with “laws and liberties” of the States where the fugitive is found, and not through the exercise of a domineering prerogative by Congress.
Whatever the real meaning of the clause in other respects, plainly it is a compact, with a prohibition on the States, conferring no power on the nation. In natural signification it is a compact. According to examples of other countries and principles of jurisprudence, it is a compact. All arrangements for surrender of fugitives are customarily compacts. Except under express obligations of treaty, no nation is bound to surrender fugitives. Especially has this been the case with fugitives for Freedom. Bodin asserted the freedom of all foreign slaves just so soon as they crossed into France.[349] In mediæval Europe cities set up the same immunity, even against claimants under the same national government. In 1531, while the Netherlands and Spain were united under Charles the Fifth, the supreme council of Mechlin rejected an application from Spain for the surrender of a fugitive slave. By express compact alone could this be secured. But the provision of the Constitution was borrowed from the Ordinance of the Northwestern Territory, which is expressly declared to be a “compact,”[350] and this Ordinance, finally drawn by Nathan Dane, of Massachusetts, was again borrowed, in some of its distinctive features, from the early institutions of Massachusetts, among which, as far back as 1643, was a compact of like nature with other New England States. Thus this provision is a compact in language, a compact in nature, and a compact in its whole history; as we have already seen, it is a compact according to the intentions of our fathers and the genius of our institutions.
There are two instances in history of compacts which illustrate the present words. The first is found in a treaty of peace between Leo the Sixth, Greek Emperor of Constantinople, and Oleg, Regent of Russia, in the year of the Christian era 906, as follows:—
“If a Russian slave take flight, or even if he is carried away under pretence of having been bought, his master can pursue him and take him wherever he shall find him, and any man who shall oppose him in his search shall be deemed guilty.”[351]
This compact, made in the unequivocal language of a barbarous age, has long since ceased to exist; and now, in our own day, Russia disdains to own a slave.
The other instance is the compact between the New England colonies in 1643, being one of the “Articles of Confederation between the Plantations under the Government of the Massachusetts, the Plantations under the Government of New Plymouth, the Plantations under the Government of Connecticut and the Government of New Haven, with the Plantations in combination therewith.” Here it is:—