Daily Ohio State journal (Columbus, Ohio : 1848), 1859-06-02

              Hiilttif 7 ' -?zrr . Mil v ' . , i Ik VOLUME XXIII. COLUMBUS, OHIO. - THURSDAY MORNING, JUNE 2, 1859. NUMBER 35. gill THURSDAY MORNING, JUNE 2, 1850. : Argument of Mr. Wolcott, OS TUBS WELLINGTON RESCUE CASES Mr. Wokoit said: It is to be regretted that the learned counsel, who on this occasion represent the Government of tho United States, have (as one of their nuin- bor has just announced to your Honors) con- eluded not to argue this cause in open court, because that conclusion deprives us of all those advantages which grow out of an orderly oral disoussioo, where voice responds to Toice, and ey looks into eye, tho best mode which the wit of man has yet devised for eliciting the truth as between contending parties. Uut while t regret, 'have no right to complain of their decision, 'it is their undoubted prerogative to conduct the case on thoir part in such way as to them shall y or irregularly, erroneously or otherwise, seem best, even though the result is, as here, to its judgment binds all persons and things which leave us utterly in the dark as to the grounds on fftn within its legitimate scope. But this im- which they rest their resistance to this applies- munity from collateral questions depends solely tion, except so far as tho same may be gathored Up0n lno presence of these two conditions, for it from the skeleton "brief of points," which was hs B0t the eonstitntional capacity to hear the only a few moments sinco placed in the hands of CSUse; or if the party sought to bo affected 1ms your Honors and myself. not been duly brought into court, then its judg- And now what is tho case before your Hon- mcnt concludes nothing. If it has this juris-ors? The State of Ohio, in tho exercise of one diction, its proceedings impart absolute Terity; of its most unquestioned, attributes of sover- if it has not, its judgment is an absolute nullity, eignty, and proceeding upon the representation When, therefore, in any proceeding in any of two of itsoitizons, presented, in the appro- Court, the judgment of another tribunal, whether priate mode, that they were unlawfully re- as between tho same parties or otherwise, is in-strained of their liberty by David L. Wightmnn, terposed, either to establish or defeat some right Sheriff of Cuyahoga county, has sent forth its thon in litigation, the very firstinquiry always is: great prerogative writ to that individual, com- ua& the tribunal rendering this judgment juris-manding him to produce before your Honors, as diction? If it had, it oonoludes in the then litiga-the repositories of the Supreme Judicial Power tion all rights which wore within its scope; if of the State, the bodies of its citizens, and to ;t had not, it is treated as mero waste paper, certify to you the authority by which he so re- an(j the rights which it sought to adjudicate still strains them. remain open for discussion and judgment. No Responding to this writ, the sheriff has here judgments, oivil or oriminal, are exempt from and now produced their bodies, and for answer tliis rule. It is of absolutoly universal applica-as to the cause thereof; returns that he holds tion; from tho court of a justice of the peace up them in custody by virtue of a warrant issued to tho highest tribunals. Each one, when to him by the Marshal of tho United States for called on te recognize the judgment of an-the Northern District of-Ohio: which warrant other power, whethor Stato or national, home is predicated upon certain proceedings had in or foreign, first inquires and first dotor-the District Court of the United States for that mines whether it had jurisdiction. Nor until same District; an authenticated transoript of n0W) and jn these cases under the fugitive act, ""which is incorporated into his return. From has it ever been hinted, that any Court was con-this transcript it appears that the delators have eluded from making this inquiry because the been convicted of a violation of the act of Con- other tribunal which rendored the judgment gross known as the Fugitive Slave act, approved asserted itself to have competent jurisdiction, on the 18th day of September, 1850, and were Now if the learned oounscl who represents the thereupon sentenced to imprisonment in the jail Federal Government, "(Col. Swoyno,) should ofCuyahoga County. - bring his action against me in a State Court, This conviction ana sentence being the cause Upon a judgment which he olaimed to have of the relators, detention, tho Court are here and now called upon to inquire into the validity thereof. That "validity is now cnaiiongea anne the record of that Court it should appear alarm-by the relators, and the State of Ohio; which atively, either that in that Court be had sued lattor alone I represent on the ground that the mo to recover a penalty given only by a statute act of Congress under which the conviction was had and the sentence pronounced, is ineom- patiblo with the Constitution of the United States, and therefore void. But at the very threshhold of the proceeding I am met with a claim of power on the part of the Federal Government, which, if well founded, is an insurmountable objection to any further inquiry, but which, I must add, strikes one al- roost dumD wiuuts auuaouy. u is msisieu mm whenever, by a return to its writ of habeas cor- pus, the tribunal of a State is advised that the relator is detained in custody under color of Federal authority, whether the exercise of that authority be assumed by any court, judge ormin- isterial officer of the Federal Government, Uie State of which the relator is a citizen, and with- in which he is detained, is powerless, to inquire into the validity of that detention. In other words, it is said, for the claim presupposes f and admits all this that however uuwarranta- ble may be the exercise of the assumed authority, however tyrannical, arbitrary and unlawful the detention, however directly pro- hibited in the partioular instance by the plain words of the constitution; yet the State tribunals are powerless to rodress the aoknowl- edged wrong; the victim has no appeal but to the usurper itself. Now I submit to your Hon- ors, that the Bare statement or this claim is its own most conclusive answer. For, ineffeot, the proposition as narrowed down to this particular case, is mat leacrai juuges may, oy usBeruug in the form of an adjudication, that power to do an act unconstitutional in itself, bind all per- sons whatever, and preclude them from inquir- ing either into the validity of the act done or the existence or the power to ao n. Now, mny it please your Honors, if a Judge, bv declaring that he has power to imprison, can estop all inquiry into the existence of that pow- to shut our eyes to this usurpation of. power; that er, he may equally, by insisting that he has the sentence is an estoppel concluding all in-powcr over property or life, estop all inquiry auiry save on ft writ of error to review it? into the existenso of that power. And what is that power but that absolute, arbitrary dominion over nil things and persons, which constitutes the very essence of despotism? Jow, whatever power these Judges may legitimately exercise, is derived from the Government of the United States.- That Government is one of limited and delegated powers. The authority of its judi- cial, and all other departments, is denned by specific metes and bounds; and that there may be no mistaking these limits, they are written it down in what is called its Constitution; and to make assurance doubly sure, the same instru- mcnt declares that all powers not comprehended within these limits do not belong to it. But to what purpose is it that this power is thus spc- this its very existence in war or peace continu-cifically bounded in, if the power so intended to ally depends. Correlative to, or rather compro- be restrained may at any time overlap those limits? The distinction (said Chief Justice Marshall, in Marbury v. Madison,) between a government of limited and of absolute power is properly doprived of his services, and that it utterly gone, if the defined restrictions do not may efficiently dischargo that supreme and i rain fact restrain the power, and acts authorized prcscriptiblo duty of protection, which, as a re-and acts prohibited are to be taken as of equal turn for his allegiance, every Stale owes to its obligation. Now It is plain beyond all argil- citizens. On these two principles, allegiance to tnent that any adjudication of a Federal Judge the State, protection to the oitizen, rests not repugnant to the Constitution is void, or if not merely all sovereignty, but the very sooial corn-void, that such Judge may, by his own decision, pact itself. Any nation which has wholly sur-alter the Constitution. From one or the other rendered the allegiance of its citizons or its cor of these alternatives there is no escape. It is either an absolute nullity to be everywhere treated as void, or else instead of a republican government exercising only specially dolegatod power?, we have one whose sway is bounded only to which that allegiance and right has bcon sur-by its own will, and have vainly attempted to rendered. But Ohio, thank God, is still a sov- limit ft power which its very nature is illimit- able. Again, 1 ask then, does ft judgment of ft court repugnant to the Constitution, and thoro- fore void, notwithstanding its invalidity, bind all persons and things within its appa- rent scope i To ask that question is to answer it. Now in this case the judicial action of this court is invoked to liberate these applicants, Upon the one hand the Constitution which you nra Biruru iu suppuri, pruuiuus vueae uitjii lrum i nns reuuuiicou uiu rigut iu pruvuui umt punion-being imprisoned for the cause alleged. While ment; but in even these instances, she has re- on the other hand, the Federal Judge in Clove- land says they shall be imprisoned. Which of these two is to command the obedience of the Court? Is the Constitution superior to the rul- ing of that judge, where the two conflict, or is the iptt dixit of that Judge to override the Consti- tution? That is the simple question. If the lattor is to control, then an act which, upon the very theory of the government, is entirely void, t or it will not be questioned that the general is yet in praotice completely obligatory, an act guardianship of the citizen is confided, not to the which the Constitution expressly forbids to be Federal government, but to tho State alone. It done is, notwithstanding the prohibition, entire- follows that the power to which this guardian-ly effectual. To what purpose then, docs the ship is intrusted, must, as an indispensablo con-Constitution itself declare that it is obligatory dition of its exercise, havo the right to in-upon you as judges, and why required to quire into and determine for itself tho validity swear to support it, if, at the same time, yon of any authority which assumes within its i are obliged to violate it at the will of any Fed- limits to deprive the citizen of that natural cral judge? right of freedom, for the security of which it But then it issaid that the courts of tho United has pledged its most solomn faith. Chief, and Statesare8upremowithinthoirspbere;allagreeto most efficient of all the instrumentalities by that; but what then? &o also are the State which the State asserts its sovereignly, and Courts supreme within their sphere: and the name argument which proves that the Fedoral Courts have ft right to determine the extent of their jurisdiction and impose that dctcrmina- tion on State Courts, proves equally that the State Courts have also the right to determine the extent of their jurisdiction and conclude the Federal Courts by that determination. But the question hers is not of the supremacy of the Federal Government within its sphere, but whether it is supreme beyond it; for the proposition implies that the adjudication in the case supposed, was an usurpation of power. And, if it please your Honors, the dogma of the supromacy of the Federal Courts within their sphere, and their utter impotence beyond it, suggests the true rule; for it is only the statement in another form of the maxim, that the Judgment or a court 0f coinoetent lurisdiction is everywhere conclu- ,;T9) BiTe on proceedings directly instituted to review it; while the judgment of a court which nas not jurisdiction, is. in law, no judgment at au jjy competent jurisdiction is meant, that the court has constitutional and legal capacity t dotorminetho subject matter of the litigation, and thatthe partiesintcrcstedinthatsubjectmat- ter, and whose rights therein are to be detormin- e j have been properly brought before it. When thesetwoconditionsexist,ithas jurisdiction. The right to adjudicate thecaso is vested in the court; .,. whether that rlo-ht is exorcised regular- recovered against me in the Circuit Court 0f the United Stales, and upon production of 0f this State; or that the subjoct matter being within its jurisdiction I had neverbeen served with process or otherwise brought into Court does any lawyer within the sound of my voice, docs even the learned counsel himself, Buppose that the State Court would hold itself or me concluded by that judgment? Surely not. Everv tvro in the law knows better. In the one case the judgment would bo void for want of constitutional capacity to aujuago any sucn penalty; in the other for want of jurisdiction over the person of myself. Nobody doubts that, Now. mav it please vour Honors, if in an action touching the rights of property, you may in a state Court impeach the judgment of a Federal Court for the want of jurisdiction; a fortiori, may y0u do the same thing in every proceeding which concerns the rights of personal freedom. If in an action pending before it, a State Court may inquire whether a Federal Court had power to dispose of an ox or an ast, how much more up- 0n this great writ of habeas corpus, may it not inquire whether that same court has power to dispose of the liberty of the citizen? When therefore, in response to Bushnell's challenge made in the pr9cribed legal mode, Marshal Johnson says he restrains him of his liberty ua- der a sontonce pronounced by Hiram V. Wilson, Judge of the Distriot Court, it is a sufficient re- ply to say either generally that Mr. Vt ilson was no iudgo at all. or that his judicial power did not extend to the case in which Bushnell was sentenced, I'om, as to uio particular case ne bad no power to render judgment, it is precisely the snme as if he was not judge at all. Now suppose he bad undertaken to try Bushnell with out a jury, or the offense charged was that of selling game out of season, are we to be tola that simply because in doing this the Judge claimed to act under Federal authority we are bound Looking, then, only at tho general principlo ap plied daily to the most solemn adjudications of every tribunal, this Court must inquire and do- termine for itself whether Judge Wilson had jurisdiction to award the judgment undor which these two citizens are held in custody. But again: the right of the State to inquire into tho validity of .any authority imposing re- straint upon its citizens as against every power, be it Stale, national or foreign, stands on an even firmer basis, for it results from the very nature of sovereignty itself. The first and chief characteristic of all sovereignty is its right to tho allegiance and service of its citizens; a right fundamental to all other rights of a State, for on hended in this right, is the powor to remove any unlawful restraint enforced against its citizens, to the two-fold end that tho State may not be im- relative incidental right to protect them while within its territorial limits, has in that very act abnegated every attribute of sovereignty, and become the mero local dependency of the powor ereign State, and has therefore never yielded this right, as she never could yield it, and still preserve her sovereignty to the federal or anv other government. In all tho Const itu- tion, I find no such grant. ' I find nothing pro- hibiting lis continued residence with the states In a fow carefully guarded, and specifically en- umerated instances, tho State has delegated to the Federal Government powor to punish; and tained the power to inquire whether this limited I authority for punishing is kept within its narrow bounds. In all else, save those special instances, tho State reserved the power to provont all pun ishmont not imposed by itself; and in all cases, including even these, she reserved the right to inquire into the nature of every authority which sought to deprive any citizen of las liberty. exercises this duly of protection, is tho great writ of habeai corput, universally called the great bulwark of freedom, which has come down to us through many ages, and which, issuing always in the namo of the sovereign, was specially designed to inquire by what an- tbority any person was restrained of bis liber- ty, and to deliver from all unlawful imprisonment. This was the sole office of the writ when the Constitution was framed, and when its makers as if apprehensive that possibly authority to suspend it might be inferred from some grant of power to the Federal Government cotnmandingly declared that its privileges should never be suspended except in cases of rebellion or invasion.1 This emphatio prohibition speaks alike to every department of that Government judicial as well as legislative and executive. Not only this, but tho Constitution of this State has thrown around this writ in like terms the same absolute immunity. binco, then, the power to inquire into all im prisonments belonged originally and necessarily to the Slates: since it has never been and never oould be surrendered; since the constitutions, State and Federal, alike declare that it shall not be suspended, I submit to your Honors that there is no power in either Government to abridge the right of the State to inquire into the validity of every authority, Federal, State or Foreign, which assumes to restrain its citizenB. Again, if it please your Honors, the right of the States to inquire into the validity of every imprisonment of persons held under F'ederal authority has been constantly asserted and ex ercised by every State since the organization of the government, Persons arrested for alleged offenses against tho United States have been frequently discharged, and you can hardly open a New York papor without finding cases where, the Stato Courts have discharged soldiers or mariners hcldin custody by virtuo of an enlistment undor federal laws. - Metzger, though arrested under a warrant of extradition, issued by the President in supposed conformity with treaty stipulations, and though a Judge of tho Federal Courts (Betts) bad held the warrant to be valid, was discharged by the State courts of New lork; and still more recently this court, in the ease of Collier, has affirmed its undoubted power to discharge persons held undor color of Federal authority. Tho right then of tho Stato to issuo this writ stands on grounds as firm as the earth itself. When it goes forth, lot all men know that it is tho State, exercising the highest of all its attributes, whioh sends out its groat prerogative writ, inquiring into the condition and restraint of its citizens, that no man to whom it is directed, be he Marshal or Chief Justice, King, Kaiser, or Presidont, may omit to give heed to its peremptory behest, that no power on earth can absolve him from obedienco to it, or shield him from the consequences of disobedience. Taking it then as established that your llonorB exercising the Supreme Judicial Tower of the State, have the right to inquire into and de termine the validity or every pretext undor which tho oitizen is hold in custody I next proceed to ascertain tho nature and authority of that adjudication upon which the sheriff of Cuyahoga county assumes to restrain these two citizens of their freedom. Bushnell's conviction rests upon an indict ment containing a single count, which in substance charges him with obstructing the master of tho alleged fugitive, without any process or color of process in the exerciso of the right alleged to belong to the master by the Federal Constitution, seizing his runaway slave wherever he may find him, and taking him back by force to the State from which he escaped. Langston's conviction rests on an indictment containing two counts; the first of which is precisely similar to thesinglo count in Bushnell s indictment; while the second charges, in substance, that Langston had obstructed a Deputy marshal of the United btates, in the execution of a commissioner s warrant, issued to him and held by him, commanding the arrest of John, an alleged fugitive lrom Bcrvice. These indictments are each founded on the act of Congress, known as the Fugitive Slave Act; tho provisions of which, it is therefore necessary now briefly to examine. Mr. Wolcott here stated the effect of eaoh of the sections of the net, which being generally known, are here omitted, and then proceeded: From this analysis of the provisions of the act, as it has been construed, by the docisions hereafter to be adverted to, it results that any man may come into one of the free States and upon his mere claim that one of its apparently undoubted citizens, resident here during many Tears, is his slave, or owes him service or labor. drag that ciftzon beyond the limits of the State of his rcsidenoo; and that no ono may interfere with this forcible capture, even to ascertain the validity of the claim so made; except on pain of fine and imprisonment. If it shall ultimately turn out that tho captured citizen, though born in a free Slate, and originally frco, was once arrested in ft slave State upon suspioion of being a slave; and finally no claimant appearing for him, was sold into perpetual slavery to pay the costs of that very arrest and dotention. Bad as this is, it is not all. This act has a depth of atrocity which no plum met Bhall over sound. It provides a safer reme dy for tho man stealer, lf .be do not choose to risk the privalecaption, he may obtain a war rant of arrest from ft Federal commissioner, seize tho alleged fugitive, take him before the Com missioner who is to hear the case in a summary manner, on such ex parte affidavits or deposi tions as may bo produced, and if these satisfy him of the existence of the claim made against the fugitive, he is to issuo his certificate thereof, which is made conclusive evidence of tho claim ant's right to remove, and confors upon him ab solute authority to make that removal; and upon his mere oath that he fears ft rcscuo, the Marshal himself is to return the alleged fugitivo, and may, if needful to accomplish that end, call to his aid the whole naval and military forco of the United States. But evon this is not the worst. Tho intending kidnapper may go be fore some Judge of tho most distant State, and upon ex parte evidonco, perhaps his own alone, obtain a record reciting the fact of snmo alleged slaves' escape a reoord which shall absolutely foreclose the questions of slavery and of escape therefrom, "with a general description, of auoh convenient oertainty as may be," of the alleged fugitive, and under it soize any man who cor responds to this description, drag him before any Circuit Judge of that circuit, though resident in another State, and then upon mero proof of the captive's identity with this "general description of convenient certainty," obtain a warrant for tho removal of the freo citizen to the State from which tho ex parte record asserts he escaped; fto be enforced with the whole power of the Fedoral Government) and thero retain him in perpetual bondago. Not only may no man, even by a rosort to judicial process, attempt to in quire into tho lawfulness of tho taking, but no tribunal, State or Federal, may. either by the writ of habeas corpus or otherwise, molest the claimant in tho exoroiso of this power, for the prohibition of the eighth section is without liini tation, and includes all officors and courts, State and Federal. Indeed tho Supreme Court of the United Stales, in its recent opinion in the Booth case, has dcoiarod that the allowance of tho writ jn such a case would be an act of "lawless violence." The citizen is thus not only without the means of protecting himself, but any endoavor to dotain him long enough to as certain the validity of his caption, is made a criminal aot. This enactment, undor pretense of preventing tho escape of bondmen, strikes down every safoguardof the liberty of the oiti zen. Docs tho citizen bold his liborty by this frail tenure? ; Ycsl if your Honors do not here and- now interpose. Other refuge on all this earth, there Is none. You or I, or tho Governor who sits here, or our Senator in Congress (Mr, I'ugli,) whoal8osltshcrc,any other citizen, may at any moment be soized and rapt away to another Slate, undor the provisions of this act, for an alike are subject to its oporation. Does anv sar that the supposition is Improbable? I reply first, No. Undor its provisions. freemen have not unfrcnucntly been ad judged to bo slaves and surrendered to that condition1.' Second, that since tho act itsolf by its very tsrms authorizes seizures in tne very iiiBtanoes just mentioned, these instances may fairly be supposed to test its validity; and their .. 1 1 I..U111.. 1- hnai.U ll.A pruuuuiiiiy or iiujiruvftuiii to tuv vuvb- tion. But, beyond this, if this very fate does not befall one of your honors or mysolf, it is not because of any exception or qualification in the act Itself, excluding its application to you or I or any freo oitizon, but because no scoundrel has either the baseness or the audacity to attempt its application, so that we enjoy our exemption from its operation against us not because we are freemen; not because tho law protects us any more than it does the negro against this arbitrary seizure, but merely for tho roason that no one sees fit from whatever motive to assert dominion over us. But this awful power is ono not exercised by this State undor its own control as against its own citizens, for the State has disabled itself from that; but authority to assort it within tho territorial limits of this State is claimed by another distinct and Independent government. The asBorters of this power, therefore, maintain not merely that the liborty of the oitizen is absolutely at the control of every villain wlio may, by erparte and perjured evidence, swear away his freedom. In a proceeding of which he has no notice, in whioh he has no voice, which he cannot impeach, but that the State to which tb citizen owes allegiance, and to whom it owes the correlativo dutyof protection, has not simply, of ltsown voluntary choicc,submittcd tothe exercise of this power within its limits, but that it has disabled both itsolfand tho government to whom it issaid to have delegated this absolute dominion from any right to inquire into the propriety of its exercise in any given instance, and has also delegated authority to the government assuming this power to punish ns criminal any ono who shall invoke tho process of law applicable to all other cases of imprisonment to in- uiro into that proceeding, ror under the ro- ccnt ruling of the Supremo Court of the United States, the great writ of habeas corpus itself is virtually declared to be unconstitutional, and your Honors for allowing it where you are ad- ised that the person is detained under a com missioner's warrant, (though such allowance be made in the plain and imperative dischargo of your judicial functions) for the same authority which made you judges absolutely requires this writ at your hands are liable for this judicial act to fine and imprisonment. These and not less than these are the proportions of the doctrine on which the claim of the Fedoral Government is now urged. this doctrino it is my duty, as most assuredly it is my pleasure lo resist here and now. with all my mind and will and strength. In the name of tho State, tho sovereignty of which is thus assailed in its most vital part; on behalf of Us citizons, all of whose liberties are thus imperiled, I am here to maintain that tbo pow er now claimed on behalf of the Federal Govern ment has no existence, and that its exercise under color of the authority of that Government is a gross usurpation of the powers retained by the Mates, -and a tiagrant violation of the natural and guaranteed rights of the citizen. llio grounds upon which the claim of this power in the ledcral Govornmont is founded, are two-fold, namely, first that the States have in and by the Constitution delegated to the master of every escaping slave, authority to pursue him in any State to which he may flee, and there without process and by force seize him, again reduce him to the condition of slavery, and retake him to tho domicil of tho master; and second, that the States have also by the same Constitution, dolegated to tho Congress of the United States powor to legislate in aid of tins rignt or reclaiming fugitive slaves. wow if this right of recaption be not given by the Constitution itself to the master; and if this power to legislate for the reclamation of fugi tive slaves ie not conierrcd on tuo congress; vory obviously the act under which Bushnell and Langston have been convicted, the one of obstructing this right, the other not only of that but of resisting process issued undor legislative provision in aid of that right, is unconstitutional and void. Being void, it could confer no jurisdiction upon the District Court, and the sen tence against the relators under which they are now detained in custody, would be a nullity. ine great question then, may it please your Honors, is: Docs the Constitution delegate to the master this right of recaption, and to the Congress this power to legislate in aid or for the en forcement of this right? To determine this it is necessary to examino the provisions of that instrument. But beforo entering directly into this examination it will not bo amiss to advert to certain established principles in tho light of which this examination must be conducted: 1. In discussing the powers of tho General Uovernmcnt it must be always borno in mind mat the Constitution was not formed by a peo ple who were then living without a Government, but by the people of sovcral distinct and independent States, each of which had a full and thoroughly organized government in operation therein, each having full power to doclare war, make pence, contract alliances, establish com merce, and do every other act which free and independent states may of right do. These States, independent in themselves, had entered into a confederation undor which they had formed a uuion for the purpose of maintaining their independence, thon tho subject of perilous and deadly struggle After this was achieved, and the outward pressure of a common danger which had largely contributed to preserve har mony of relations, was removed, the articles of confederation were found wholly inadequate for their continued government as a nation. U nder the influence of this reason, these independent States again resolved to attempt the formation of a more perfect union, and accordingly sent delegates to a convention assembled for the pur- poso of framing a Constitution which should secure that end. Meeting thus as sovereigns, this object could be accomplished in no other modo than the surrender by each of some portion of the power which had hitherto portained to it in virtuo of this sovoroignty, while still retaining all those attributes not neocssary to tho efficiency of the common government it was designed to found. The Convention thus assembled, did, in process of time, agree upon a constitution to be submitted to tho sevoral distinct Bovcreigntios for their ratification; and these sovereignties did, after prolonged and critical examination of its provisions, and with more or less reluctance n each instance, yield its final assent to tin new frame of Government oreated by that Constitution. This Govornmont, thorefore, consists simply of powors thoretofore pertaining to tho States, but delcgatod by them to tho new uov- ernments. But, then, it was necessary to do something moro than simply confer active powers upon the now Government. Bowers not at all necessary to that would still remain with the States; the exercise of which might violate the fundamental principles of justice and freedom, or be inconsistent with tho exercise of the pow ors given to tho Uonoral Uovernmont; and this condition would be met by simply disabling the States from the exeroiso of theso powors. But then there would still remain a class of sub jects, which, not being of national concern, called for tho exercise or no national power, and thorofore required the dolcgatinn of nono to the General Govornment; and whioh, on the other hand, required more or less of regulation by tho respective States themselves, so that they could not proporly or safely renounce thoir power over them; and yet which at tho eamo time bo far concerned the maintenance of harmonious rotations between tho Stntos, or the people thereof as to ronder some common understanding necessary as to the extent to which eaoh should exorcise its undelegated and unrcnounced powers upon these subjeots of common intorost. This exi gency would bo fully provided for by a simple agreement botween tho States not to press the exercise of thoir resorved powors upon the sub jects indicated, beyond oortain ueuned limit From tho very necessity of things, thon, we might a prion have determined that tho consti tution would consist, first, of grants of power to the Government, oreated by its provisioui; second, of prohibitions upon powers not delega ted; and third, olauses of compaot, by whioh each State covenants with the other, so to exer cise or forboar the exercise of powers neither delegated or prohibited, and, thorefore, still re tained, as not to affect, in certain defined ways, subjects which, though not of national concern, wore yet of importance as affecting tho exterior relations of the Slates to each other, AU of the constitutional provisions do accordingly range themselves under the one or the other of these three great and natural divisions. Now. very evldontly, no one of the constitutional provisions oporates to givo any powor to the Government unless it range itself under the head of grants, so that no power as to any given subject is to bo imputed to the Government simply because that subject has been made a matter of regulation, for that regulation may con-silt either of a total prohibition of power to the States over it, or of a simplo compaot between tho States to do or omit to do some particular thing, the execution of which rest with the States alone. But again, the Government created by this constitution consists not merely of delegated and limited powers. The states, as if to guard against the Known tendency of all power to overpass prescribed limits, have made no general grants and then undertaken to hodgo it In by metes and bounds, but has specifically expressed tho subjects and objects to which the power of that Governmentshould extend. Thus, whenevor It was designed lo confer powor over any subject, that subject has been selected, and calling it by its propor and ordinary name, the. States said, "The Congress Bhall have power' to borrow money, declare war, to establish post offices, to punish piracy on tho high, seas, &o." The Federal Govornment Is therefore one of enumerated as well as limited and delegated powors. Still again, the powers granted being granted by independent sovereignties, it not only follows as the result of all just reasoning that all powers not granted aro withheld, but the Constitution, not content to rest upon a mere logical result however irrcsistiblo, has itsolfdoclared that the "powers not delegated by It to the United States or prohibited to tho States are reserved to the States respectively, or to the people." From this undeniably corrcot viow of the nature of the Constitution, it follows, First, that as the Government is ono of limited and enumerated powers, and as every grant is in derogation of Slate sovereignty, it has no authority save such as is expressly granted, or as is merely subsidiary to tho execution of tho expressly granted powers; or in other words, no substantive, independent power, the exercise of which is ono of the ends of government, can be implied. Such a power has no existence, save as it is founded in express grant. This rulo necessarily results from the Constitution, and with a singlo exception, hereafter to be noticed, has been uniformly sanctioned and acted upon by tho Supreme Court of the United States. 2. That as to all powers not thus expressly delegated to the United States, or expressly prohibited to the States, or tho exercise of which has not been regulated by any of the clauses of compact, each State has the complete, exclusive, unlimited and undeniablo jurisdiction and power over all persons and things within its limits, to the same supremo extent which has ever pertained to any nation in any age. As to these powers, the States stand to each other and to the Federal Government as absolutely foroign nations. With these two genoral principles, applicable alike to all discussions of tho powers of the Federal Government, kept constantly in view, there still remain two other established rules of special application to the particular subject now under discussion; which subject, be it remembered, is the power of the master to recapture by force in the free States his escaping slave, and of Congress to legislate in aid of this right, or, moro generally speaking, of the General Government to protect the relation of master and slifVo within the limits of those States which forbid its existence. "The state of slavery," said Lord Mansfield, pronouncing judgment in the great case of Somerset, "is of such a nature, that it is incapa-of being introduced on any reasons, moral or political, but only by' positive law. It is so odious, that nothing can be suffored to support it but -positive law," and every court of every State, slave and free, has echoed and re-echoed these immortal words! And whon one pauses a moment to reflect on it, no wonder that even the slaveholder himself acquiesces in this statement of the sole condition upon which it can found its existence. For, of all the wrongs that can be oommltted against humanity. this is at onoe the greatest and most pregnant with evil conscquenoes. It is not, as has been most forcibly said, a single blow aimed at prop erty, or limb or lifo; not a single murdor strik ing out or existence one or more of the living, but a tasting, continuous crime; perpotuating, nay, reduplicating itself through each succeed ing generation. The knife of the assassin stops with tho victim into whioh it is thrust: it does not and can not, through him, strike into the life of anothor generation. But tho wrong of slavery, ty tno very condition or Us existence, constantly produces now victims to be anew devoured by its insatiate maw. It was an out rage committed against two human beings today, repeated by tho law of the system against five or ten moro in the next ten years, and against twenty-fivo or fifty more within one generation, and so increasing in a geometrical ra tio through all coming timo. It creates then a perpetuity of crimc,and fastens it as an heredita ry plague upon two racos;dcvouring alike by its le prosy, tho wrong-doer and the wronged. Looking at this, its bad eminence, well might not simply the moralist, and thestatesman, but the jurist eon- cur in declaring that this wrong can have no ex istence in any Bystem of government except by positive and express sanction. It can found itself on no inforence however strong; it can derivo no support from phrases 'of ambiguous meaning; but ho who claims its existence or re cognition in any form, however qualified, must bo ablo to show some clear affirmative enact ment, which will admit of no other sense or interpretation.But a second prinoiplo of the common law. applying to the judioial resolution of all ques tions luuuiung mo personal rights or man is aiso 10 oo nepi constantly in view, oldor than the Constitution older than the Declaration of Independence oldor than Mag. na cuarior oiuer even than the eommon law itself. Wherever the right of man to his liborty is the subject of question, every doubt is to be roBolved in favor of liborty, alike in the bond of the apprentice In the laws relating to serfdom and villonage in the statutes and judioial pro ceedings, wiuon deprive a person of his liberty as the punishment of crime every word is to be construed striotly as against the power to deprive him of freedom. Even as against the acknowledged criminal, the law permits no in ference or intendment or presumption, but every thing is to bo construed in favor of freedom. Still more thon must this be so in a constitution framed by a people who had just emerged from a seven years war, to establish the self evidont truth, that all mon are born free and equal, and which the Constitution avowed upon its very front in words of fire, that it was ordained to socure the blessings of liberty to the people of uin milieu amies anu uieir posterity. Wow we have these four groat rulos whioh are to guide us in discussing this quostion of Constitutional powor First, that the General Government has no power savo that whioh is expressly dolegated dj iuq onsiuuuon. eecond, that all powers, not expressly delegated, or restrained bv abso lute prohibition or qualified by oompaot, belong iu uiu otiuos in an tueir original supremacy iniru, mat slavery is or bo odious a orimo that the power to reoognite Its existence ean be derived only from an affirmative, positive grant, permitting no other interpretation: and lastly, that honored maxim which requires every doubt- iui purase w ne construed in lavor or liborty These four rulos, all oonvorglng to one result, en- ablo me to declare, and I spoak with the united authority whioh has established these rules an authority greater and moro decisive than can be found to sustain any other iudicial proposi tion that if the power has not been given to the master to re-capture and re-subjugate his siave in a rroe ritate, and to tongross to legislate in aid of this recaption and reiubjugation; if I say this power has not been delegated in express and affirmative terms terms of the most unequivocal and imperative import then the power has absolutely no existence; and this cruel act, which, though aimed at one race, strikes down all, is as vain as it is wicked and cruel. This leads me directly to the one question to be decided : lias the Constitution, by an express grant, vested in the master power to make a raid into every State in pursuit of a runaway slave, and finding him, to drag him back without process; or has it given Congress power to enforce his surrender? This question is to be decided, not upon argument, not on the weight of reasoning for it neither requires or admits of reasoning but simply upon inspection and by the use of the eyes. Does the Constitution say in so many words, Congress may do this thing? Let us see. I look first at the eighth section of the first article, which contains the gonoral enumeration of powers granted to Congress, and I do not find it there; nay, no one pretends that it is thero. I pursue my search through the other parts of the Constitution, reading it article by article and section by section, but I do not find it there. In all the Constitution the word Blavo or slavery is not there; nor is there any other equivalent word or phrase which aptly defines that relation, and nothing else. Even those words whioh may, by construction, perhaps, be deemed to inolude slaves, equally express the condition of freemen who owe service or labor in virtue of voluntary contract obligation. Nor is this omission accidental. All tho world now knows, and I shall horcafter show, that every word and syllable wuicn meant slave or slavery, and nothing else, was carefully and anxiously excluded from the Constitution, for the vory reason avowed by Madison, who uttered the general sentiment of the Convention, "that it would be wrong to admit into the Constitution the idea that there could be property in man." But even in those olauses of doubtful phraseology, which in. one sense may bo construed to include slave, not, be it remarked, as proporty, but as persons; even in those, I say, I find no mention of the rights of recaption; no mention of the master, or of Congress, or or any other department of the Federal Government; still less do you find any grant of power to either over this subject. Vainly do you read the whole instrument in search of any such express grant. It is not there; and nobody pretends to say it is there. Still less does anybody protend that this power to reclaim fugitive slaves, either by the master or by the Congress, is subsidiary to any expressly granted power. But this being ascertained, the examination of the question ends. By each and all the rulos of interpretation I have invoked, and their correctness, no ono will doubt, if the power is not expressly granted, if it do .not stand out from the text of tho Constitution in characters so unmistokeable that he who runs may read. The powor has no existence. Since, then, it is not expressly granted sinco it aoes not so stand out, there is nothing left to discuss, nothing to be dono, but to declare the result which the settled rules inexorably affix to this absence of express grant, namely: thatthe power claimed does not exist and the act is therefore void. That is the conclusion, and it is as irresistable as Omnipotence itsolf. The wit of man can not get over or around it, and hero this argument ought to close. Why should one truth be demonstrated more than once Upon tins ground alone I might well olaim that the applicants are wrongfully de- iniueu in custody, ana nere rest their right to an immediate and unconditional discharge. But as the question now under discussion is one which so nearly concerns, not only the sover eignly of the States, but the personal rights of win umzeii, iv may not do wnouv unnrontable to show still further the immovable stability of vue Dase upon wmcn that sovereignty rests, and the impregnnble safeguards with which the liberty of the oitizen has been hedged about. Now lot it be supposed, though the supposition seema quite impossible, that I am utterly mistaken as to eaoh and all of the four principles upon which i uave asserted mat the power or Congress over this subject is to be ascertained and determined let it be granted that powers may be impu ted 10 congress by implication, thatslavery may exist in virtue of doubtful phrases or equivocal enactments, and that in construing the consti tution no intendment is to be made in favor of freedom, then I have to Bay that even if you apply to the constitution the same rules of inter pretation by which you would ascertain the sense of a more huckstering bargain between two traders, forgetting all narrow prejudices in favor of freedom, it is still easy to 'show that oven upon that modo of interpretation you can find no warrant for the exercise of this power. iiu nun mom upuu uiu existence oi tuis power derive it from the last clause of the second section of the fourth article, which provides as follows:"No person hold to service or labor in one State, undor the laws thereof, escaping into another, shall, in consequence of any law or regulation thorein, be discharged from such service or labor, but shall Tie delivered up on claim of the party to whom such service or labor may bo duo." Now, upon looking at the sections of the constitution which immediately precede and follow this clauso, I find various provisions in which power is expressly given to Congress over various subjects, but in this olauscnot only is Congress not mentioned, but there is no grant of power to any one. Upon tho maxim of czprmia unius, &c, the ordinary rules of interpretation, and the laws of common sense infor, that since power is given in relation to other subjects provided for in the clauses immediately before and after this, and none is given as to this, none was intended to be given. If they intended to give the power in this instance why not say so, as they said in all other cases? Si non dixit non voluit. But again, upon looking at those sub jeots in respect to which power is affirmatively given, I find them all to be either of national concern, that is affecting the General Government and necessary to its efficiency, or subjects in which the citizens of all tho States have a common interest. But here the subject is neither of national concern, nor is it one in which the citizens of all the States have a common interest. On the contrary, this subject was one of puroly domestio policy it was entirely a local affair; tho institution which is thought lo be intouded by its circuitous phraseology was one to which a portion of the States wore utterly hostile, and this feeling was growing stronger daily and it was therefore one in respect to which it was not proper to confer any power. I onoe no power was given. Still again, upon looking at tho language of the clause itsolf alono, it is seen that it contemplatesFirst. That In eomo of the States persons are held to labor or service undor the laws thereof. So far, of course the clause has plain reference to States nlone. Second. That persons so hold under the laws of one Stale may escape into another State, Still again having reference to SlatesovXj. Third. That in tho State to which the person thus hold to sorvice under the laws of another Suite has escaped, there may be laws or regula tions which would operate to dischargo him from that labor or service; still again having re-foronce to Statei and State laws or regulations. Fourth. Then providing that such State laws or rogulationB shall not hare the effect or con so quenco to discharge the escaping porson from the labor to which he is hold in another State under its laws; still having reference to Slatet and nothing else. Now if the section stopped horenoone would pretend that the least iota of power was intended to be oonforred upon Congress. It does not, however, stop here, but without break or pause prooeeds in the same sentence to add by way of antithesis, "but shall be delivered up," &o. To whom is this addressed? Obviously to tho same object which had before boen addressed, for no new one is introduced as the subject of the command, "shall be delivered up." By whom? No one is specified, but by the laws of well speaking, not less than by the laws of the structure of language, the elause has ne cessary reforenot to some power which has been named before; and that power is the State alone. Somebody "shall not discharge;" seme- body "shall deliver up," and the body addressed . in the one case is the body addressed in the other. Now who "shall not discharge?" The , i States, for so says the clause in terms. - Then who shall deliver up? The States plainly. But : how many of the Slates? Not all, nor any two ; or more of them at any one time, or any one i fugitive, but the solitary one which ever it be, into which at any time, any given fugitive may escape, from any other State. , . Have I not then established my position that even if you may resort to inferences to attribute a power to Congress, if you may ignore the great rules whioh apply toallquestionsof personal freedom, and if you mj interpret this instrument by the same rules which you apply to any commercial compact, a contract of copartnership, a . , constitution of agtncy, that the result is still the same, and on no rule of oonstruotion can you find here any power in Congress. For what can be plainer than that here is ft compact between-the States upon a mere matter of comity and good neighborhood, providing a rule for the adjustment of certain relations which might be V , sustained by any twoStatesata given time, and nothing mure or leu I Congress is not once men tioned; no matter of national interest is mooted, i and least and last of all, is there the slightest hint from which by any process of torture Con- . gressional or Federal jurisdiction can be implied of the relations here-adjusted. Just before and immediately following this seotion, three times in the same article, Congress has delegated to it certain powers, but not a mention of power here, except individual State power. : What could be more conclusive upon this ques-tion?And then, when I go back to the true rules by which this great instrument is to be interpreted, and find the result to be the same as by the most 'ordinary rules, thon 1 may say, not untruly, that this result is absolutely impregnablethat this clauso is one of compact merely, which the States alone ean exeoute; and that the Congress has no more power to provide for the caption of fugitives from service within the States, than the Parliament of Great Britain, or a "Pow Wow" of the Camanche Indians. Conclusive as this is, this is by no means all. Tho history of this clause confirms, with irresistible certainty and force, the result arrived at from an examination of its language alone. This provision, and the other three which precede it in this article, are, as the court well know, by no means new in the Coastitution. , That which relates to the effeot of reoords, except as to the grant of power that which relates to the privileges of citizens, and that whioh relates to the extradition of fugitives from justice, were taken from the old articles of confederation, while that which relates to the ' surrender of fugitives from service is taken from the Ordinance of 1787. What did these clauses mean originally, in the places from whioh they came? Were they compacts or grants of power? Let us see, and first of those contained inthe articles of confederation: The first article of the confederation establishes the Btyle of the confederacy: the "United States of America." The second artiole is the key to the whole, and deserves speoial attention. It declares that "each State retains its sovereignty, freedom snd independence, and every power, right and jurisdiction, which is not by this confederation exprettly delegated to the United ' States in Congress assembled." No implied powers here I Jealous of the Government they were about to create limited as it was, and weak as it proved to be the States insert this limitation as the first, fundamental condition of the confederacy, and by it sternly and explicitly forbid the assumption of any function or power save that expressly delegated, and carefully retain to the States every scintilla that is not in terms granted. There can then be no difficulty in ascertaining what powers belonged to the Congress, of the old confederation. They are carefully enumerated: we have only to read the schedule; none others xiit. Let ns goon. In the third article "the States severally enter into a firm league of friendship with each other" for their common defense, and "bind themselves to assist each other against all force," 4c, a simple treaty, compact or obligation, but no grant of power to Congress. By the first clause of the fourth article, the free inhabitants of each State, except paupers, vagabonds and fugitives from justice, are enti. tied to all privilogcs and immunities of free cit zens in the several States; still a elause of compact, but no grant of power. The second clause of tho same artiole is in these words: "If any person guilty of or charged with treason, felony, or other legal misdemeanor in any State, shall flee from justice, and be found in any of the United States, he shall, upon demand of the Governor or executive power, of the State from whioh he fled, be delivered up, and removed to the State having jurisdiction of his offense." No power is here delegated expressly or otherwise, to the Congress to deliver np the person guilty or charged; but under the second article, each State retains that power as entire, unquestionable, as if the confederation had never existed. ' This clause was also simple compact, and I desire special attention to be given to this. The thud and last clause of. this artiqle pro- tiuvu mat -iuu laun and oredit Bhall be given in each of these States to the records, sots, &c, of the Courts and Magistrates of every other State." No grant of power here, and Congress therefore could not enforce or regulate this clause of compact. Eaoh State retained in all its fullness and vigor "every power, jurisdiction and right" over the manner in which this agreement should be performed. So much for the force and effect of these clauses as they stood in the articles of confederation compacts all no powor over them in the Congress full and absolute power over them in the States and in them alone. And how was it with the provision relating to "fugitives from servioe," as that stood in the Ordinance of 1787? That Ordinance was passed on the 13th of July, 1787, while the Convention that framed the Constitution was still in session, and in the midst of its labors. Its first provisions are devoted entirely to framing a .temporary government whioh should suffioe during the condition of territorial pupilage. Having by a few carefully drawn provisions accomplished this object, the Congress, casting its eyes into the distant future, proceeded with a wise and provident forecast, to establish certain great principles whioh should forever secure to the millions who were thereafter to inherit it, the rights of personal liberty, the security of property, the freedom of conscience, the blessings of education, aLd the right to self govornment. In order that these principles might not be deemed either to par- take of the character, or be subjeot to the incidents of ordinary legislative enaotment, the ' Congress, after a brief preamble, reciting that for extending "the fundamental principles of civil and religious liberty, which from the basis whoreon these republics, their laws and constitutions are erected; to fix and establish those principles as the basis of all laws, constitutions and governments which shall forever be formed "in said territory," proceeded not to enact an ordinary statute, but to ordain and declare that the following articles shall be considered as artioles of compact between the original States and the States and people of said territory, and forever remain unalterable, except by common onnsent." The first five articles of compaot define, in a few briof words, the great principles which underlie all free government, and then last and greatest of all comes the sixth article of oompaot, containing, first, the memorable ordinance whioh consecrated the soil of tho northwest to freedom forever; and second, this proviso, "that when any person escaping into the territory, from whom labor or service is lawfully claimed in any one of the original States, such fugitive may be lawfully reclaimed, and conveyed to the person olaiming his or her laber as aforsaid." Now, this was undeniably ft mere compact, and . it is so distinctly named; conferring no power on the Congress of the confederation, not only