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Show 2.56 DESPOTISM v.lliarUn, (14 Wendall, 507); and even Mr. :Vebstcr, in his famous 7th of March speech, emphatically de· clarcd himself to entertain the same view. "I have always thouO'ht." such are his words," that the con~ stitution addre;sed itself to the legislatures of the states, or to the states themselves. It says that those persons escaping to other states 'shall be delivered up,' and I confetis I have always been of the opinion that it was an injunction upon the states thcmsclvei5. When it is said that. a person escaping into another state, and coming, therefore, within the jurisdiction of that state, shall be delivered up, it seems to me the import of the clause is, that the state itself, in obedience -to the constitution, shall cause him to be delivered up. 'l'hat. ls my judgment. I have always entertained that opinion, aud I entertain it now. But when the subject, some years ago, was bcrore the Supreme Court, the majority of the judges held that the power to cause fugitives from service to be delivered up was a power to be exercised under the authority of this (i. e., the Federal) government." The case here alluded to i~ that of Prigg v. Pennsylvania, (16 Peters, 539,) of which we shall presently have occasion to speak. 'fhe necessity failing, of any legislation, and especially of any Federal legislation, to carry into eRect the clause for the delivering up of fugitives from labor, the only other ground on which any such Federal legislation can be or has been attempted to be s_us· tained, is the mere ground of precedent-the notwn so g reat a favorite with a certain class of lawyer~, more learned than profound, that usage makes law, or rather, that the law is to be determined by usage. It is said that the right of Congress to legislate on this subject cannot now he questioned, because that right was exercised by the second Congress,. some sixty' years ago, and has ever since been acq~uesced jn ; an argument that seems to count for nothmg the adverse opinions or such lawyers as Walworth, \V'eb· ster, and others to be presently mentioned. I~ AMERICA. 257 rrh: advocate~ of t~i~ est?ppel h:ne a great deal to say (::iCC Nelsons op11110n 111 Jack v. J11artin, in the Supreme Court of New York, 12 Wenda\!, 311) about the large number of members of the Fcdf'ral convention who sat also in the Conuress of 1793 and of the great and special knowlcd~e which t hry' and the o1 her member~ of that Congress, rnu::;t b~ supposed to have had of the intimate intentions of the framers of the Federal constitution, and of the true mcamng and proper interpretation of that in~lrumcnt. But to all this there are two very sufficient answers. Whatever knowledge there miuht have been in the Congress of 1793 of the secn~t history of the F~deral cor~st1t.u~on, and of the expectations, hopes, Wishes, or 1ntenttons of the individuals concerned in framing it, or procuring its ratification, we of the preseut day-since we have, besides the text of the constitution, the labors of more than sixty years bestowed by the courts and the bar upon its iuterpretatlon and exposition-are in a vastly better position for apprehending its real legal purview and effect than the men of 1793, or even than the very men that made it, who, in all the questions that speedily a rose as to its interpretation, were even less unanimous ~han the expositors of to-day. In point of fact, the members of the Federal convention, of whom ~11any subsequently sat in the early Congresses, seem Ill gen~ral to have had but a very imperfect and confused Idea of the real nature of the national government which they had created, and of its true relations to the governments of the states. 'l1he idea of two, or rather of sixteen coOrdinate governments so intimate!~ intertwined, and yet each, iu its own sphere, sover~Ign and independent, was at tirst very diJficult to be apprehended, at least in its consequences; and no inr.;onsiderable part of the legislation of th~ early Congresses-and the fugitive act of 1793 ~fiord::; an instance of it-proceeded upon t he fal:::;c Idea that in the execution of its own powers, Con· gress and the Federal executive had a right not 22' |
