The Act of 1793 proceeded from a Congress that had already recognized the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has been since in high quarters pronounced unconstitutional. If it erred as to the Bank, it may have erred also as to fugitives from service. But the Act itself contains a capital error on this very subject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers. This error takes from the Act all authority as an interpretation of the Constitution. I dismiss it.
The decisions of the Supreme Court are entitled to great consideration, and will not be mentioned by me except with respect. Among the memories of my youth are happy days when I sat at the feet of this tribunal, while MARSHALL presided, with STORY by his side. The pressure now proceeds from the case of Prigg v. Pennsylvania (16 Peters, 539), where is asserted the power of Congress. Without going into minute criticism of this judgment, or considering the extent to which it is extra-judicial, and therefore of no binding force,—all which has been done at the bar in one State, and by an able court in another,—but conceding to it a certain degree of weight as a rule to the judiciary on this particular point, still it does not touch the grave question which springs from the denial of Trial by Jury. This judgment was pronounced by Mr. Justice Story. From the interesting biography of the great jurist, recently published by his son, we learn that the question of Trial by Jury was not considered as before the Court; so that, in the estimation of the learned judge himself, it was still an open question.
(1). First of the power of Congress over this subject.
The Constitution contains powers granted to Congress, compacts between the States, and prohibitions addressed to the Nation and to the States. A compact or prohibition may be accompanied by a power,—but not necessarily, for it is essentially distinct in nature. And here the single question arises, Whether the Constitution, by grant, general or special, confers upon Congress any power to legislate on the subject of fugitives from service.
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 constistuted, 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.
Thus much for the evidence from the history of the Convention. But the true principles of our political system are in harmony with this conclusion of history; and here let me say a word of State rights.