them; and it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the States are bound to provide means to carry into effect the duties of the national government, nowhere delegated or entrusted to them by the constitution."
To the first part of this sentence we say, neither can congress be compelled to enforce the provisions of this clause. In the last part the court again assumes the point in issue, to wit, that this duty is one of "the duties of the national government." The next sentence is one which it seems astonishing that a court like that could have uttered. It shows either that it did not comprehend the point at issue, or that it believed others could not comprehend it. It says:
"On the contrary, the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the constitution."
What an important discovery! What a triumph of logic! The supreme court of the United States, by dint of labored reasoning, has arrived at the profound "conclusion that the general government should filfil all the duties imposed on it by the constitution, unless the constitution positively forbids it to do so!" It seems to think that the instrument might very naturally contain such a prohibition, but in the absence of such a one, then the court considers it quite clear, that the general government sho'd fulfil its duties! As though somebody had been urging before it the converse of that proposition, and claimed that the general government ought not to fulfil its duties! whereas, the only only question was as to what its duties were, and not whether it ought to fulfil them, for the negative of the latter question no man would assert. When, therefore, the highest court in the nation, on a great constitutional question before it, coolly assumes the point in issue, and offers to the world, instead of reasoning, common-place truisms, in no way applicable to the point, and about which there is no dispute, "the natural if not the necessary conclusion" is, that the proposition it maintains is not susceptible of a reasonable support.
The last sentence in the above extract seems to be not only a specimen of false reasoning, but also of disingenuousness. It quotes from Mr. Madison the following remark, which it says applies "with peculiar force." "A right," says he, "implies a remedy: and where else would the remedy be deposited, than where it is deposited by the constitution?" And the court adds—"meaning as the context shows, in the government of the United States." Now, the question before the court was not as to whether "a right implies a remedy," but where the remedy was deposited, and consequently the latter part of the quotation from Mr. Madison, was the only one applicable to the point. And when the court asserts that his "meaning" was that the remedy was "deposited in the general government," it seems to have designed to convey the impression that the remark of Mr. Madison was made in reference to the fugitive clause under consideration. For if not, then what matter was it what his meaning was?—If Mr. Madison only meant that the remedy to some right was deposited in the general government, would the court therefore infer that the remedy for all rights was deposited there? It must either have designed to make this wild and illogical inference, or else to have represented Mr. Madison as speaking of this clause. But when we turn to the Federalist, No. 43, we find that the remark quoted by the court, was made in reference to that clause in the constitution which says that "The United States shall guarantee to every State in the Union, a republican form of government, &c." Here the constitution expressly deposits the remedy in the general government. The quotation of the court, therefore, was either disingenuous to Mr. Madison and the public, or else it had no more bearing on the point than would the quotation of the hundredth psalm.
This extract has been given and examined sentence by sentence, to show how unfairly the court assumes the point to be proved.
Another instance, on page 618, shows further its deliberate unfairness, or else its incapacity to understand the force of an objection. It says:
"But it has been argued that the act of congress is unconstitutional, because it does not fall within the scope of any of the enumerated powers of legislation confided to that body; and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this—that although rights are exclusively secured by, or duties are exclusively imposed upon the national government, yet, unless the power to enforce these rights, or to execute these duties, can be found among the express power of legislation enumerated in the constitution, they remain without any means of giving them effect by any act of congress."
The last part of this extract is either a wilful or ignorant misrepresentation of the objection. It says the objection is made "although the duties are exclusively imposed on the national government." That is false! Nobody ever made such an objection. It is a "man of straw" raised by the court. The real objection is that the duty is not imposed on the national government," either "exclusively" or at all. The moment it is shown that any duty is imposed on the national government exclusively, then it is admitted on all hands that that government possesses all the powers necessary to the performance of that duty. The objection is that the duty does not belong to congress at all. The court most unfairly states and argues it as though it were admitted to belong to it, and then objected that congress could not execute it for want of express words granting it the power to do so.
To such miserable perversions is it driven when it seeks to constitutionalize a usurped power.
The reasoning is unsatisfactory in itself. It is so because it is based upon assumption, as already shown.—It is unsatisfactory because it is forced, captious, and unnatural. Take, for example, the following specimens, in which it is argued that the States cannot legislate for the delivery of fugitives from labor, because the trial under a State law to determine whether the person claimed really owed service or labor, would necessarily occupy some time, and be a discharge pro tanto, from service, under the State laws, and consequently against the design of the constitution. On page 612 the court says:
"The slave is not to be discharged from service or labor, in consequence of any State law or regulation. Now certainly without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any State law or State regulation which interrupts, limits, delays or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates pro tanto a discharge of the slave therefrom. The question can never be, how much the slave is discharged from; but whether he is discharged from any, by the natural and necessary operation of State laws or State regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right."
The court says this is not "indulging in any nicety of criticism upon words!" This remark must remind us of the old saying that the wicked flee when no man pursueth.
Judge Wayne, in the opinion delivered by him, takes the same position. On page 646 he says:
"If, then, in a controverted case, a person charged as a fugitive, shall be discharged under a remedy legislated by a State, to try the fact of his owing service or labor, is he not discharged under a law or regulation of a State? It is no answer to this question, to say that the discharge was not made in virtue of any law discharging the fugitive from servitude, and that the discharge occurred only from the mode of trial to ascertain if he owed service and labor. For that is to assume that the provision only prevented discharges from being made by the States by enactment or law declaring that fugitive slaves might be discharged. The provision will not admit of such an interpretation."
On page 648 the same Judge says:
"Would not a postponement of the trial of a fugitive owing service or labor for one month, be a loss to the owner of his service equivalent to a discharge for that time? And if a State can postpone by legislation, the trial for one month, may it not do so for a longer time? And whether it be for a longer or a shorter time, is it not a discharge from service, for whatever time it may be?—It is no answer to this argument to say that time is necessarily involved in the prosecution of all rights," &c.
Now, a more strained and unnatural construction it would seem impossible to place on any constitutional clause. The constitution says the fugitive shall not be discharged from service by a State law, but shall be delivered up. The court says that if the State legislates expressly to cause him to be delivered up, that is a violation of the constitution, because time would be spent in ascertaining if he owed service and labor, and that he would be so far discharged. As though the design of the constitution was to save to the slave-owner the time spent in asserting his claim, notwithstanding it requires him to make the claim. Could not the court see that the same
