to show that the decisions by which this power had been sustained in congress were contrary to all settled and safe rules of construction; and that if they are to be followed, the constitution would be the mask and not the measure of its powers. That it would be like the painted scenery on the stage, used to hide the designs of the actors till they were ready to begin, and then shifted and changed to accommodate the character of the proposed performance.
I wish now to call the attention of the Court to another branch of this objection, and that is to the extent of the criminal jurisdiction of the United States. When we look into the constitution to find how far that jurisdiction extends, we learn that congress has the power to "provide for the punishment of counterfeiting the securities and current coin of the United States—to define and punish piracies and felonies committed on the high seas, and offences against the law of nations, and to declare the punishment of treason." We find that no other criminal jurisdiction whatever is delegated to it in the instrument. These offences are of a flagrant character, either aimed at the existence of the national government, or such as are committed out of the jurisdiction of the States, and beyond the reach of their power to punish. From the nature of the offences—from the cautious and specific manner in which the power to punish them is granted, a very strong implication arises that the intention was that congress should have no power to punish other offences. Because if it was to have implied criminal jurisdiction, these specific grants seem to have been useless. Take for example the case of treason. That is a crime levelled at the very existence of the government. It would seemt that if any power was to pass by implication, it would be the power to punish this crime. But the framers of the instrument did not so understand it. After defining what should constitute treason, they add the express words that "congress shall have power to declare its punishment." The object seems to have been to leave no uncertainty in this matter, but to mark the boundaries of the criminal jurisdiction of the general government so plainly that there could be no danger of their being passed over.—They feared the gigantic strength of that government, and designed to guard the people against a jurisdiction that might oppress them by multiplying crimes, and pains and penalties—that being the manner in which the worst forms of tyranny had always been developed.
This is the view taken by one of the Kentucky Resolutions, drawn by Mr. Jefferson, adopted by the legislature of that State, and since endorsed by the Democratic Party. The resolution is as follows:
"Resolved, That the constitution of the United States, having delegated to congress a power to punish treason, counterfeiting the securities and current coin of the United States, piracies and felonies committed on the high seas, and offences against the law of nations, and no other crimes whatever, and it being true as a general principle, and one of the amendments of the constitution having also declared 'that the powers not delegated to the United States by the constitution, nor prohibited by it to the States are reserved to the States respectively, or to the people,' therefore, also, the same act of congress, passed on the 14th day of July, 1798, and entitled, 'an act in addition to the act entitled an act for the punishment of certain crimes against the United States,' as also the act passed by them on the 27th day of June, 1798, entitled, 'an act to punish frauds committed on the Bank of the United States,' (and all other their acts which assume to create, define or punish crimes other than those enumerated in the constitution,) are altogether void and of no force; and that the power to create, define and punish such other crimes is reserved and of right appertains, solely and exclusively to the respective States, each within its own territory."
This doctrine, therefore, seems to have a very considerable weight of political authority, if it has not any judicial. But I am aware that a different practice has been adopted by the government, and that it has exercised the power to punish a number of other crimes besides those enumerated in the constitution. This power has been claimed under the general grant of incidental powers.—I find no case in which the point has been raised or determined judicially. But Chief Justice Marshall alludes to the penal code of the United States, in the Bank case, by way of illustration. It will be seen that he admits that there is "plausibility" in the position of the Kentucky Resolution. He says:
"All admit that the government may legitimately punish any violation of its laws, and yet this is not among the enumerated powers of congress. The right to enfoce the observance of law by punishing its infraction, might be denied with more plausibility, because it is expressly granted in some cases. * * The several powers of congress may exist, in a very imperfect state to be sure, but they may exist and be carried into execution, although no punishment should be inflicted in cases where the right to punish is not expressly given.
"Take, for example, the power 'to establish post-offices and post-roads.' This power is executed by the single act of making the establishment. But from this has been inferred the power and duty of carrying the mail along the post-road, from one post-office to another. And from this implied power has again been inferred the right to punish those who steal letters from the post-office or rob the mail. It may be said with some plausibility that the right to carry the mail, and to punish those who rob it, is not indispensably necessary to the establishment of a post office and a post road. The right is, indeed, essential to the beneficial exercise of the power, but not absolutely necessary to its existence. So of the punishment of the crimes of stealing or falsifying a record or process of a court of the United States, or of perjury in such court.—To punish these offences is certainly conducive to the due administration of justice. But courts may exist, and may decide the causes brought before them, though such crimes escape punishment."
Now I shall not deny that there is great force in this reasoning, nor that there is some ground to believe that the government might claim the power to punish, as incidental to the execution of the express powers, even against the strong implication arising from the specific manner in which the power to punish certain crimes is delegated. I still think all such power might safely be left to the States and they being equally interested in the accomplishment of the objects of the constitution, would pass all the criminal laws necessary. But admit that this is not so, and that the general government is to have an implied power to punish other crimes than those enumerated. What is the limit of that power? Where are the bounds at which it must stop? If they are to exercise this implied power at all, the utmost extent to which it should be carried is this: The express power, to which the power to punish is claimed as incidental, should be first pointed out. And the act to be punished should be one aimed at the execution of the power, or one tending to hinder and impede the operations of the general government or some of its departments. The power to punish should be clearly and plainly incidental to the express power, and necessary to its execution.—This rule should be rigidly adhered to. For there is far more reason to believe that the Kentucky Resolutions contains the true doctrine, than that congress may exercise criminal jurisdiction upon loose implication. And this is the only extent to which Chief Justice Marshall carries the power, as shown by his illustrations. He says the power to punish robbing the mail, is "essential to the beneficial excercise" of the express power to "establish post-offices and post-roads." So the power to punish perjury was essential to the proper operation of a court in administering justice.
Let us see, then, what is the character of the Fugitive Act in this respect. In spite of all the care of the founders of our government, to guard us against the exercise of an unwarranted criminal jurisdiction, we have here a law that brings under its ban, all things that are lovely and of good report. A law, that not only in spirit, but by its letter, would seize upon our mothers, who, by teaching us from our earliest years, to do to others as we would that others should do to us, lead us to aid a wandering fugitive to escape from a doom to which no human being would wish to be consigned himself. A law that would punish our wives and children, who, by their gentle affection and prattling innocence, make the home of man a place of refuge and delight, amid all the cares and sorrows that may overwhelm him in life. Because the holy feeling created in his heart by the love of his wife and children, leads him to try and save a fellow-being from being dragged a way to a condition where he has no wife and no children, but where they are torn from him, and sold into enteral separation, as ruthlessly as the butcher tears the young animal from its anxious dam! A law that would punish our teachers, all who instruct and enlarge our minds, and inspire us with the love of knowledge and of truth. Because all this leads us to rescue a brother man from the grasp of the oppressor, who would reduce him to a state of bondage, where the whole power of society is brought to bear on him, to shut out from his mind every ray of truth, and to encase his soul in impenetrable ignorance and night. Yes, Sir! all that can inspire our
