“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]