Xv.
(I.) Now, first, of the power of Congress over this subject. The Constitution contains powers granted to Congress, compacts between the States, and prohibitions addressed to the Nation and to the States. A compact or prohibition may be accompanied by a power; but not necessarily, for it is essentially distinct in its nature. And here the single question arises, Whether the Constitution, by grant, general or special, confers upon Congress any power to legislate on the subject of fugitives from service. The whole legislative power of Congress is derived from two sources; first, from the general grant of power, attached to the long catalogue of powers ‘to make all laws which shall be necessary and proper for the carrying into execution the foregoing powers and all other powers vested by this Constitution in the Government of the United States, or in any department or officer thereof;’ and secondly, from special grants in other parts of the Constitution. As the provision in question does not appear in the catalogue of powers, and does not purport to vest any power in the Government of the United States, or in any department or officer thereof, no power to legislate on this subject can be derived from the general grant. Nor can any such power be derived from any special grant in any other part of the Constitution; for none such exists. [143] The conclusion must be, that no power is delegated to Congress over the surrender of fugitives from service. Thus the proceedings of the Convention show that the founders understood the necessity of powers in certain cases, and, on consideration, most jealously granted them. A closing example will strengthen the argument. Congress is expressly empowered ‘to establish an uniform rule of Naturalization, and uniform laws on the subject of Bankruptcies, throughout the United States.’ Without this provision, these two subjects would have been within the control of the States, and the Nation would have had no power to establish an uniform rule thereupon. Now, instead of the existing compact on fugitives from service, it would have been easy, had any such desire prevailed, to add this case to the clause on Naturalization and Bankruptcies, and to empower Congress to establish an Uniform rule for the surrender of fugitives from service throughout the United States. Then, of course, whenever Congress undertook to exercise the power, all State control of the subject would have been superseded. The National Government would have been constituted, like Nimrod, the mighty Hunter, with power to gather the huntsmen, to halloo the pack, and to direct the chase of men, ranging at will, without regard to boundaries or jurisdictions, throughout all the States. But no person in the Convention, not one of the reckless partisans of slavery, was so audacious as to make this proposition. Had it been distinctly made, it would have been distinctly denied. The fact that the provision on this subject was adopted unanimously, while showing the little importance attached to it in the shape it finally assumed, testifies also that it could not have been regarded as a source of National power over Slavery. It will be remembered, that, among the members of the Convention, were Gouverneur Morris, who had said that he ‘never would concur in upholding domestic slavery;’ Elbridge Gerry, who thought ‘we ought to be careful not to give any sanction to it;’ Roger Sherman, who was opposed to any clause ‘acknowledging men to be property;’ James Madison, who ‘thought it wrong to admit in the Constitution the idea that there could be property in man;’ and Benjamin Franklin, who likened American slaveholders to Algerine corsairs. In the face of these unequivocal statements, it is absurd to suppose that they consented unanimously to any provision by which the National Government, the work of their hands, dedicated to Freedom, could be made the most offensive instrument of Slavery. Thus much for the evidence from the history of the Convention. [144] But the true principles of our Political System are in harmony with this conclusion of history; and here let me say a word of State Rights. It was the purpose of our fathers to create a National Government, and to endow it with adequate powers. They had known the perils of imbecility, discord and confusion, during the uncertain days of the Confederation, and desired a Government which should be a true bond of Union and an efficient organ of the national interests at home and abroad. But while fashioning this agency, they fully recognized the Governments of the States. To the nation were delegated high powers, essential to the national interests, but specific in character and limited in number. To the States and to the people were reserved the powers, general in character and unlimited in number, not delegated to the Nation or prohibited to the States. And here I end this branch of the question. The true principles of our Political System, the history of the National Convention, the natural interpretation of the Convention, all teach that this Act is a usurpation by Congress of powers that do not belong to it, and an infraction of rights secured to the States. It is a sword, whose handle is at the National Capital, and whose point is everywhere in the States. A weapon so terrible to Personal Liberty the Nation has no power to grasp.
