ed that no legislative body can be compelled to legislate unless it pleases. But to the law of congress for the surrender of criminals, a valid objection exists, and that is, not that congress could not have been compelled to legislate, but that after legislating it is unable to enforce the law. Suppose the State executive refuses to deliver up the criminal on a requisition? How can congress compel him to act? Not at all! The national Judiciary has established the principle that State officers are not responsible to the national government. And therefore the State executive may surrender the criminal on demand, or not, just as he pleases. And they have in several instances refused to surrender, and yet no attempt was ever made to compel them. And this shows the necessity of having the State legislate in the matter, so that the officer who is to execute the law may be held to some responsibility. And as a matter of practice the States do legislate upon it. We have a statute in this State prescribing the manner in which fugitives from justice shall be delivered up. And the act of congress on that subject stands as a dead letter, creating no more obligation than existed without it, from the requirement in the constitution alone.
It was strongly urged by the court that the contemporaneous exposition of the framers of the constitution, was in favor of the legislation of congress. But the fact seems to be equally strong in favor of the other side, that in both of those laws the execution was entrusted almost entirely to State officers. That fact shows that they considered the State, after all, to be the party that was to deliver up. And that being established, it follows, from the principle just referred to, that the manner of doing it should be legislated by that power to which the officers are responsible, so that its execution may be enforced.
The principle itself, and the fact that the law of '93 was in violation of it, are expressly admitted in the opinion of Justice McLean. On page 664 he says:
"It seems to be taken as a conceded point in the argument, that congress had no power to impose duties on State officers, as provided in the above act. As a general principle this is true, but does not the case under consideration form an exception? Congress can no more regulate the jurisdiction of the State tribunals, than a State can define the judicial power of the Union. The officers of each government are responsible only to the respective authorities under which they are commissioned. But do not the clauses in the constitution in regard to fugitives from labor and from justice, give congress a power over State officers on these subjects? The power in both cases is admitted or proved to be exclusively in the federal government."
And then, in the same manner, as it had been sought to justify congress in legislating for the re-capture of fugitives from labor, on the ground that it had legislated for the surrender of criminals, Judge McLean attempts to justify it in imposing the duty on State officers in the one case, because it had done so in the other; or in other words, he seeks to justify one unconstitutional act by another. After referring to the 1st section of the act of '93, relating to fugitives from justice, and pointing out the great fact that it made it the duty of the State executive to cause the person demanded to be arrested, &c., and saying that this had never been questioned, he proceeded to ask:
"Now, if congress may, by legislation, require this duty to be performed by the highest State officer, may they not, on the same principle, require appropriate duties in regard to the surrender of fugitives from labor? Over these subjects the constitutional power is the same."
It is so clear, then, that this law is in violation of a plain principle established by the court, and also by reason, that Judge McLean is compelled to admit it. And in what way does he get rid of the difficulty? He asks very innocently if this law "is not an exception" to the rule. Why did he not answer his own question? Why did he not show some reason why this was an exception? Why congress could legislate on these subjects in a manner directly in violation of those principles which govern its legislation on all others? Why did he not do this, except it be that no such reason existed? He asks:—"But do not the clauses in the constitution in regard to fugitives from labor and from justice give congress a power over State officers on these subjects?" No! They do not! If you assert they do, show it! You have been compelled to go out of the constitution in order to raise a pretence that they give congress any power at all! Where, then, can you find the power for it to act in a manner in which it could not act, to promote a purpose, the power to promote which was expressly granted to it in the constitution? It cannot be found. And not a shadow of an argument has been, or can be offered to justify the pretence that this case is an exception to the established principle. There is no possible reason why, if congress has power over State officers on these subjects, it has not power over them on all others. The law for the surrender of criminals, therefore, instead of furnishing any support to the other, furnishes the contrary. For it is liable to the same objections, and brings additional evidence that congress regarded the State as the proper authority to execute the requirement of the constitution. And that fact being established, it follows, as already remarked, from the principle that the State officers are not responsible to the general government, that the State also should legislate, so that the law may be obeyed.
The reasoning is further unsatisfactory, because it is founded on a gross insult to the honor and good faith of the States. In order to lay a foundation for the right of congress to legislate, the court assumes that the States would violate the constitutional requirement. On page 623 it says:
"One State may require the owner to sue in one mode, another in a different mode. One State may make a statute of limitations as to the remedy in its own tribunals, short and summary; another may prolong the period and yet restrict the proofs. Nay, some States may utterly refuse to act upon the subject at all; and others may refuse to open their courts to any remedies in rem, because they would interfere with their own domestic policy, institutions, habits," &c.
Judge McLean also said on page 662:—"If the effect of it depended, in any degree, upon the construction of a State by legislation or otherwise, its spirit, if not its letter, would be disregarded." And the same position was assumed all the way through. Now to suppose the States could not understand the spirit of the constitution, was an insult to their intelligence. To assume that, understanding it, they would refuse to obey it, after having entered into a solemn obligation, and taken a solemn oath to do so, was an insult to their honesty and good faith. And they were both insults which the national court had not right to offer. And having offered them, and made them the basis of its reasoning, the insulted States have a right to reject that reasoning, as resting on an unsound foundation.
The court intimates that it would have been a great want of wisdom in the framers of the constitution, to have left the States to legislate under these clauses, because they were the parties to be bound by them. There is no force in this intimation. It was the doctrine of many of the most prominent men who framed the constitution, that it was a compact between the States, as independent sovereignties. That is the doctrine of the Virginia and Kentucky Resolutions endorsed by the Democratic Party. That some of its provisions are matters of compact between the States, is evident, and has been admitted by the Supreme Court. Now, in all cases of compact between independent sovereignties, there is nothing to rely on for the fulfilment of the obligations imposed, but the integrity and good faith of the parties. Therefore, for the States joining together in a union, to have manifested the same confidence in the honesty and good faith of each other, that nations always manifest in each other, who are not joined in any union, would have afforded no reason to impute them a want of wisdom or foresight.
The reasoning is further unsatisfactory, because its various parts are in conflict with each other. The opinion of the court is delivered by Judge Story. In that it is contended, not only that congress has the power to legislate, but that this power is exclusive. Five of the other Judges deliver separate opinions, and one, Justice Baldwin, concurred with the judgment for a special reason, "but dissented from the principles laid down as the grounds of the opinion." Three of the Judges, Chief Justice Taney, Justice Thompson, and Justice Daniel, in their opinions, deny that the right is exclusive in congress, but urge strongly that the States have also a concurrent right to legislate on the subject. Chief Justice Taney delivered a very able argument in favor of this position.—His remarks on this point have already been quoted, showing that the very words of the clause "seem evidently designed" to impose the duty on the States to legislate. Their arguments to prove this cannot be answered. But all those arguments are directly in conflict with the idea that congress has a right to legislate, and with all the arguments urged in favor of that right.
They who assert the right of congress, do so only by pretending that the words which say the fugitive "shall be delivered up," are addressed to the national Government. When, therefore, Chief Justice Taney and those who contend for the concurrent right of the States, prove that
