Page:Unconstitutionality of the Fugitive Act.djvu/8

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withstanding his opinion, voted to affirm the decision of the court below, on the ground that by the pleadings, the fugitive admitted himself to be a slave. This was the only point decided in the Court of Errors. The vote of the court was unanimous, but how many were of the same opinion as the Chancellor, and how many of that Senator Bishop, does not appear. For aught that appears in the report, all except Senator Bishop, may have believed the law to be unconstitutional.

I have said that I should endeavor to show that these decisions were in violation of well settled rules of construction. I shall now proceed in that attempt, and shall point out the rules that I claim have been violated.

In the first place, let me invite the attention of the court to the further consideration of the implied powers, that congress may legitimately exercise. In all the cases where its powers have been called in question, we see much about "implied powers," and it is therefore important to determine what kind of implied powers it may rightfully claim. And upon this subject I understand the rule to be, that it can claim none, except such as are implied, as incidental to some express power, and necessary to its execution. The authorities sustaining this rule I have already referred to. They lay it down in express terms. And I think it is to be derived, with equal clearness, from the whole course of reasoning, in those cases which have been regarded as stretching the power of congress even beyond its utmost verge. Take, for instance, the Bank case. The court there admits that Congress can exercise no powers not delegated to it, but claims that there is nothing in the constitution excluding implied powers. It then goes on to show what kind of implied powers it means. It says that it would have been impossible to specify all the "means" by which the government might carry into execution the powers granted, and that the instrument therefore expresses only the great powers, leaving congress at liberty to adopt such means as were necessary to their execution, and claiming that the power to adopt those means, was incidental to the express power. The court entered into a labored argument to show that congress might even go to this extent,—that it might even adopt the means necessary to carry into execution its express powers. It also claimed that the means need not be "indispensably necessary," but if they were ordinarily necessary and proper for the end, the degree of necessity was to be judged by the legislature and not by the court. The court then says that although the power to incorporate a Bank is not among the enumerated powers of the government, yet that it has the great powers "to lay and collect taxes; to borrow money; to regulate commerce; to declare and conduct a war; and to raise and support armies and navies." It then proceeded to urge that a Bank was a necessary and proper means to carry into execution those great express powers, and placed is constitutionality upon that ground, and on that alone. This decision has been regarded by a great portion of the American People, as having carried the powers of congress entirely beyond their just limits. I have, therefore, alluded to it at some length, to show that even in that case, the only kind of implied power claimed for congress, were such as were incidental to the execution of express powers. There must be an express power pointed out in the first place, before the doctrine of implied powers can be called into action at all. They must show a visible express trunk in the instrument itself, on which the proposed implied power is to be grafted, as incidental to its execution.

I do not urge before this court, that it is not proper in any case, to go into an investigation of the objects of a clause in order to construe it. This may be done where its meaning is doubtful. It may be done in construing the constitution as well as other instruments. Where a power is given, the extent of which is doubtful, the objections of it may be enquired into, in order to give it a just construction. Neither do I contend that when a power is given, it should receive a narrow and illiberal construction, that might defeat its purpose. It should be constructed fairly and reasonably. But what I contend for, is this: that so far as the constitution is concerned, the objects of a clause can only be enquired into in order to construe a "given power," and not to give a power. In the case of Gibbons vs. Ogden, 5th Con. R., on page 583, the court says,—"If from the imperfection of human language, there should be serious doubts respecting the extent of any given power, it is a well settled rule that the objects for which it was given, especially when those objects are expressed in the instrument itself, should have great influence in the construction." This language is confined to the construction of a "given power" It would be applicable in construing the powers "to regulate commerce,"—"to declare war," or any other express power of doubtful extent. But it affords no sanction for any court, admitting that the words of a clause confer no power on Congress, to enquire into its objects, for the purpose of implying in Congress as a matter of convenience to its accomplishment, an independent power to carry it to into execution. Because the instrument expressly excluded from Congress such implied powers; and therefore to enquire into the objects and intention of a particular clause in order to imply from those objects and intentions, a power in the General Government to execute it,—not given by the words, nor incidental to a given power, would be to make the intention of a particular clause, defeat the manifest intention of the whole instrument. It would open to the General Government the boundless and unexplored regions of implication, from which it might draw whataever power it desired.

Another rule of construction violated by these decisions is that the intention of an instrument is to be gathered from its words. And that they are never to be department from, except to avoid a difficulty that cannot be otherwise avoided. In the case of Ogden vs. Saunders 12th Wheaton 332, in an opinion delivered by Chief Justice Marshall, this rule is laid down as follows: "To say that the intention of the instrument is to prevail; that this intention must be collected form its words, &c.,—it to repeat what has been already said more at large and is all that can be necessary!"

In the case of Sturges vs. Crowninshield, 4th Con. R., page 418, the Court says: "Before discussin this argument, it may not be improper to premise, that although the spirit of an instrument, especially of a constitution is to be respected not less than its letter, yet the spirit is to be collected chiefly from its words!"

I shall show that these decisions leave the words of the instrument and go, without cause, into a historical investigation to arrive at its intention.

There is another rule that when there is no ambiguity there is no room for construction. This is laid down in the 1st Story's Commentaries on the Constitution, page 284, as follows:

"When its words are plain, clear and determinate, they require no interpretation, and it should be admitted, if at all, with great caution, and only from necessity, to escape some absurd consequence, or to guard against some fatal evil." And after alluding to some isntances, where questions might arise form the doubtful meaning of words, he says:—"Whenever such questions arise, they will probably be settled, each upon its own peculiar grounds; and whenever it is a question of power, it should be approached with infinite caution, and affirmed only on the most persuasive reasons!"

Now, sir, I contend that there is no ambiguity in this fugitive clause, as to the power that is to carry it into execution. There has always been a great question in the minds of many, whether the words applied properly to slaves.—There might be some ambiguity upon that, but that has not arisen in any of these cases. There is no ambiguity on any other point. The words are plain and clear. The fugitive is not to be discharged by the State, but is to be delivered up. But it is said the clause does not prescribe by whom he is to be delivered up, and therefore there is an ambiguity. I think I have already shown to the court, that the plain, natural import of the words is, that he is to be delivered up by the State. But admit that this is not so, and that the words simply require a thing to be done, without saying whether the General Government, or the States shall do it,—and this is the most that can be claimed. Is there any ambiguity then, as to which shal do it? Clearly not! There might be, if the presumptions were euqal in favor of the two powers; but this is not so. The General Government must show its authority,—the States need not.—If the words do not prescribe which power may execute the clause, of course they do not give the General Government authority to execute it. Therefore the States come in by the 10th amendment, and bear off this power, as they do all others, not delegated to the General Government.—Looking at the whole instrument, thereore, there is no ambiguity as to which this power belongs.

And now let us proceed to the decisions themselves.