The Cleveland Daily Herald

Cleveland, April 26, 1859

 

 

Debate in the U.S. Senate – Fugitive Slave Law Unconstitutional.

 

 

      Glancing through the files of the Appendix to the Congressional Globe, we came across the report of a debate in the Senate of the United States on the 23d of February, 1850, on the bill of Mr. Toucey to protect officers and other persons acting under the authority of the United States. It is found in vol. 31, 2d sess. 33d Congress, page 212. Mr. Chase replied to Mr. Toucey, and, in the course of his remarks quoted from a speech made by Senator Rhett of South Carolina, declaring the fugitive slave act to be repugnant to the Constitution. The argument of Mr. Rhett will be read with interest at this time when thirty-seven citizens of Lorain County are on trial at Cleveland for the rescue of a negro claimed to be a slave. Here are his words. Mr. Rhett said:

      “I take up the Constitution, and I find that all it says with respect to the fugitive slaves is contained in the second section of the fourth article, and it is a mere quotation in that section. The section begins as follows:

“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 the claim of the party to whom such service or labor may be due.”

      Now, these two clauses are exactly similar in purport, except in one particular. In the one case the fugitive criminal is to be delivered up on demand of the executive authority of the State from which he has fled; in the other, the fugitive slave is to be delivered up on claim of the party to whom he belongs. In neither clause is it stated that the fugitive is to be delivered up by the State authorities. Yet it is clear these clauses can refer to no other authority for their enforcement, because no other authority is spoken of. It is an affair between two States. The fugitive is to be delivered up. To be delivered up he must be seized – he must be in the possession of those who deliver him up. No authority within a State can seize a criminal against the laws of another, but the authority of the State itself to which he has fled. This is the law of nations, and is acknowledged by the act of 1793, with respect to fugitive criminals, but is denied with respect to fugitive slaves. In the former case, the State authorities are to seize and deliver up the fugitive criminal, but in the latter, according to this act, State authorities have nothing to do with the fugitive slave. In the former case, the Constitution is only a treaty stipulation between sovereign States; in the latter, it is a matter of Congressional Legislation, although Congress is not referred to in either case in the Constitution. Is there any ground, in reason, for this difference of construction?

      Let us apply the acknowledged rules of construction I have laid down for ascertaining the meaning of the Constitution. It will not be claimed that Congress possesses the power to legislate on the subject of fugitive slaves as necessary and proper to carry out any expressly granted power. It is a distinct, substantive matter itself, and can contribute is not way to enforce any other grant of power. The power, if it exists at all, must be by special grant, laid down in the Constitution. Now, sir, look at the clauses in the Constitution I have quoted. Is there one word in either of the two clauses referring to fugitive criminals and fugitive slaves, conferring any power on Congress to legislate upon these subjects? No power whatever is given to Congress. Congress is not even mentioned in them. What is the inevitable inference? Why that Congress has no such power.

      This view of the constitution is confirmed if we look into the section immediately proceeding and succeeding the section relating to fugitive criminals and fugitive slaves. In both of these sections Congress is given power to act. The first section provides: “That 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 law, prescribe the manner in which such act, records and proceedings shall be proved and the effect thereof.” And in the third section it is provided that “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.”

      Here, then, is this remarkable state of things. Three sections follow each other in the fourth article of the Constitution. The first and the third give to Congress the power to legislate. The second, lying between them, gives Congress no power to legislate. What must be the inevitable inference? Why, that it is the plain meaning of the Constitution that Congress should not have the power to legislate with respect to fugitive criminals and fugitive slaves. – To infer that such a power exists under such circumstances is not only to claim a power without a special grant in the Constitution, but to seize it, although virtually negative by the special grants.

      And, sir, it is not difficult to perceive why the constitution with held all power from Congress to legislate on the subject of fugitive criminals and fugitive slaves, and has left this whole matter to the State for enforcement. The framers of the Constitution knew very well that it was a very delicate matter for citizens, without a State, to attempt to seize any person within it. Slave holders knew that there was but one way by which their fugitive slaves could be effectually recovered to them, upon entering another state, and that State a free State. The power, the police, the judiciary of the States must be engaged. The faith and duty of the States must be implicated. Every man in the free States must be bound, as a party to the Constitutional compact, to deliver up to him his slave, on his mere “claim.” This is the great efficient remedy provided in the Constitution for the recovery of fugitive slaves; and the claim being made, it rested with the State or the State authorities to do one of the two things – “deliver” up the slave or pay for him. –

State Journal.