Legal Brief (7 April 1851) in Sim's Case, 61 Mass. (7 Cush.) 285; 1851 WL 4490 (1851).
These are by Robert Rantoul, Jr., elected a Representative 4 March 1851, previously a Senator, from Massachusetts.
Rantoul (1805-1852) was presenting (at the then pre-1851-election convention) certain abolitionist points against the Fugitive Slave Law of 1850.
The South, also known as the 'Slave Power,' modern term, "Big Slavery," ruled Congress and the White House and thus the nation.
The 'Slave Power' was enraged at Northern 'states' rights' action providing for due process of law and habeas corpus for slaves. Such Northern states' rights actions aided slaves fleeing the brutal, concentration-camp type conditions in the South.
Slavers, would-be claimants, were required to prove in court that the person(s) claimant really were slaves.
Slavers demanded "tort reform," lawsuit control, to obstruct the "little guy" having rights against them.
A compliant US Congress and President complied, passed "tort reform."
They abolished jury trial for accused slaves!
They even banned accused slaves from presenting testimony in their own defense!
This "tort reform" changed court focus from hearing both sides impartially, to a more pro-'Big Business,' pro-slavery stance.
In addition, slavers were expansionist geographically, were advocating enslaving whites, and including incidents involving white women.
All these facts in combination terrified Northerners, that their liberties too were in danger.
In the modern era, we recall that East Germany put up the 'Berlin Wall,' to keep oppressed people in. The South was taking similar action, trying to force people to stay in; and, like the then-Communist East German dictatorship, was failing. People with a choice of slavery or freedom, typically choose freedom. Slaves would flee, via the "Underground Railroad."
Northern 'states' rights' personal liberty habeas corpus laws granted due process to such individuals; and of course, since no crime was alleged against slaves, freed them.
So the South, with experience censoring facts and passing pre-emption laws, had Congress pass a federal pre-emption law, "tort reform," the 'Fugitive Slave Bill,' pre-empting, overruling Northern 'states' rights' personal liberty laws of this type, precluding jury trials, and forcing the Free-North's States to return those who had fled the South. Even the Communist East Germans had never had a law passed forcing the West, to, without trial, return escapees from Communism!
Robert Rantoul, Jr., gave this speech to explain certain aspects of the unconstitutionality of the federal 'tort reform,' forced-return pre-emption law.
Other abolitionists, e.g., Lewis Tappan, gave additional analyses of the unconstitutionality.
Rantoul had been a perennial candidate for Congress, always losing as the "Slave Power" against him was stronger. But when the "Slave Power" forced through the "Fugitive Slave Act" in 1850, forcing Northerners to help them catch "slaves," the anti-slavery viewpoint became more popular, and anti-slavery candidates more likely to win. Thus Rantoul won that year (1851).
For background, see analyses by, e.g., Harriet Beecher Stowe and Richard Hildreth.
This site is one in a series making again available, the long out-of-print anti-slavery writings of the pre-Civil War era.
Examples include the writings of George Mellen (1841), Alvan Stewart (1845), Lysander Spooner (1845), Benjamin Shaw (1846), Joel Tiffany (1849), Rev. William Goodell (1852), Abraham Lincoln (1854), Edward C. Rogers (1855), William E. Whiting, LL.D., et al. (1855), Rep. Amos P. Granger (1856), and Frederick Douglass (1860).
Our fore-fathers had this information. Now you can too.
The 3 April 1851 Speech is reprinted first here, then the 7 April 1851 legal brief.
With respect to the Speech, people of the 1850's sometimes omitted tables of contents, used long pargraphs including without indenting quotations, and used or spelled words differently than now. Paragraphing, indenting, and spelling have been updated to reflect modern use. A table of contents, subject headings, and editor notes on obscure references and circumstances, are also included [in brackets] to clarify for modern readers. The legal brief is so short, no 'table of contents' is needed.
Holden at Lynn, Thursday, April 3, 1851.
Photographic [Stenographic] Report by Dr. James W. Stone.
Pursuant to a call from the District Committee, a very large and highly respectable meeting of the Democracy of the Second Congressional District, including the most active and efficient supporters of Democratic principles, for the last twenty years, in almost every town in the District, assembled at Lyceum Hall, Lynn, on the afternoon of the 3d of April, for the purpose of consultation with reference to the election ordered for the following Monday.
The meeting was called to order at half past two o'clock, and the HON. FREDERICK ROBINSON, of Marblehead, formerly President of the Senate of Massachusetts, was chosen President of the Convention.
HENRY LANE of Lynn, were chosen Secretaries.
have defended with unwavering fidelity, and cherished with PECULIAR zeal. The unanimous applause with which his remarks were received, showed plainly that the faith of Thomas Jefferson, Samuel Adams, and Elbridge Gerry, though it may be extinct in the metropolis of New England, still lives and burns in the hearts of the Country Democracy [rural Democrats].
Resolved, That the Constitution of the United States has not conferred upon Congress the power to enact any law authorizing officers of the United States to determine the slavery or freedom of persons found within the territory of any State, and to convey them out of the State wherein they are found, to he held as slaves in another State.
Resolved, That no person in any State of this Union can be lawfully deprived of his liberty without due process of law; which process, in the case of an alleged fugitive from service, is a suit at common law; wherein the fact, whether said fugitive was lawfully held to service, in the State from which he is alleged to have escaped, shall be determined by a trial by jury.
Resolved, That such trial by jury should precede the delivery, into the hands of the party claiming him, of such alleged fugitive, and should be had in the vicinity where the said alleged fugitive is found.
Resolved, That in the determination of the question of liberty, all presumptions of law and fact, are, and ought to be, in favor of liberty.
Resolved, That the fugitive slave law enacted [in 1850] by the Congress lately expired [term ended 4 March 1851], contravening these principles, is unjust, unconstitutional, in derogation of the fundamental maxims of free government, and ought to be speedily and for ever repealed.
The reading of the resolutions was interrupted frequently with demonstrations of approval, and after being read they were laid before the meeting for discussion.
The President introduced Mr. Rantoul, who was received with great enthusiasm, and preliminary to commencing his speech re-read the aforesaid resolutions, and proceeded.
Mr. President, the Convention which I now have the honor to address, was called, as I suppose, at my suggestion. The reason why I desired of the District Committee of this district that the Democratic voters of this district should be called together, and that I might have an opportunity to address them, was one which I think will meet the approbation of you all. It was, that since the period when I was first nominated to represent this district in Congress, a very material change has taken place in the condition of affairs.
One change was this. I have had the honor to be nominated for Congress again and again, when I supposed there were very few persons who believed there was any probability of my election. A law has now been passed which makes it certain that some person must be elected to represent this district in Congress. It is called the Plurality Law.
comes a different question as to what ought to be done.
There has also been a change with regard to other great question. The great question of slavery has now assumed a particular shape, concerning which it is now necessary to declare an opinion. So long as that question was floating in uncertainty, so long as it was connected with subjects which were changing day by day, it might not be desirable that a public man should state his opinions.
But at last this question has assumed a definite shape.
Ed. Note: This refers to the Fugitive Slave Law "tort reform"
(b) criminalizing pertinent Bible principles.
It [the slavery issue] has presented a distinct issue, an issue reaching back to fundamental principles. And I did in my conscience suppose, that the Democratic voters would desire to hear from me, before they should deposit their votes at the election of Monday next.
Supposing that all the Democratic voters desired to be acquainted with the views of their candidate, one of two courses was necessary to be adopted; either in writing to present my views to the citizens of this District, or to invite the Democratic voters to come together and meet me face to face. I have preferred the latter, because I can speak more freely than I can write, (though that is a personal consideration,) and because if I address my fellow citizens here, those who wish to hear me can come, and those who do not wish to hear me can stay away.
Gentlemen, you have supported me as your candidate through a good many trials. It has come to my ears lately that there are some persons who claim to belong to the democratic party who would not be satisfied if I made such declarations as I now intend to make. I desire that if there be such gentlemen present they may have an opportunity to show themselves, and to declare their purposes, and, if they constitute a majority of the democratic party, that they may substitute some other candidate in my stead.
In explaining one's ideas before the people, it seems to have become quite the fashion, of late, to go back so far as to swear fealty to the Constitution and the Union. I will follow that fashion.
I am attached, and as devotedly attached as any other man, to the Union of these States, and to the Constitution of our government. I believe the Union to be at the bottom of almost all the other political blessings that we enjoy. I believe the Constitution to be—not perfect, as nothing proceeding from human hands is perfect—-but as nearly and as reasonably perfect as could have been expected at the time it was made, as could be expected if it were made now, and even better than if we were to make it over again.
But when I say that I admire and love both the Union and the Constitution, it is because of that which they secure to us. The Union is great, I might almost say, it is the greatest of our political blessings, because it secures to us what was the object of the Union. And the Constitution is good, and great, and valuable, and to be held for ever sacred, because it secures to us what was the object [purpose] of the Constitution.
Ed. Note: See Lincoln's Analysis of the Word "Liberty".
Why do we value the Union? Because it secures our national independence and the independence of the several States; because without it, there would exist a number of petty States, which would be, as they are in Europe, exposed to perpetual wars with each other and with their neighbors. We should be obliged to keep up a standing army, and should be quarreling with each other, as the petty German States have done for ages. With all that, your national independence would be, if preserved, continually in hazard, but most probably could not even be preserved. And out of that condition of things would grow most probably a contest of small States with great ones; and the independence of the weaker ones would be sacrificed, while the greater ones would rule over them.
to the whole people of the United States, and to their posterity.
It is because I believe all this, that I love the Union and the Constitution.
And if I did not believe this, I should go back to my pilgrim ancestors and take a lesson from them. When they came out from the old world, and left their country which they loved, and the constitution of Great Britain which they loved, (for they expressed their love for it in all their writings, speeches, and deeds,) though they loved their country and its constitution, they loved something else more than they loved their country. They loved liberty more. "Patria cara, carior libertas."
THE PRESIDENT. That is the true higher law.
Ed. Note: This refers to the "higher law" / morals concept being then popularized by anti-slavery Senator William H. Seward, over the objections of "Bible Belt" politicans!
See context by, e.g., Harriet Beecher Stowe and Richard Hildreth.
Reference also Acts 5:29, on obeying Bible law vs politician law.
See also data with which people of the time were familiar, data on slavery as sin, by, e.g., Rev. John Rankin (1823), Rev. Theodore D. Weld (1837), Rev. Beriah Green (1839), Deacon James Birney (1840), Rev. Stephen S. Foster (1843), Rev. William W. Patton (1846), Rev. Parker Pillsbury (1847), Rev. John G. Fee (1849), etc.
See also Abraham Lincoln's Speech at Peoria, and the fact of education being higher quality back then, so now obscure references and concepts were then well-understood by the public at large, not merely by specialized scholars.
Mr. RANTOUL. These ideas are not at all new with me. They are not taken up on account of any present position of public affairs. I see before me quite a number of gentlemen who were present eighteen years ago, when I had occasion to discuss the value of the Federal Union, I then took the same view of the value of the Union and the Constitution that I take now. I valued them then, as I value them now, because of their great purpose. So long as they accomplish that purpose, so long are they the highest political blessings. And if they ever cease in the providence of God to accomplish that great purpose, they become worthless, they may become even a curse.
"The unity of government which constitutes you one people" to be "justly" dear to you, because "it is a main pillar in the edifice of your real independence," and "of that very liberty which you so highly prize."
"broils, and wars between themselves;" and though last, not least, "the necessity of those overgrown military establishments, which, under any form of government, are inauspicious to liberty, and which are to be regarded as particularly hostile to republican liberty."
Ed. Note: For background on the military budget under President George Washington, and in that pre-'military-industrial complex' era, see, e.g., Charles Sumner, The True Grandeur of Nations (4 July 1845), pp 110.
"In this sense it is," says he [Washington], "that your Union ought to be considered as a main prop of your liberty; and that the love of the one ought to endear to you the preservation of the other."
It is because I receive into an undoubting heart these parting lessons of that apostle of liberty, who was the founder of our Union, and inaugurator of our Constitution, that I venerate his work, and cling to it, as to the ark of our political salvation.
Living in this faith, and desiring to live up to this faith, I so exhibit my fidelity to the Union, and so exercise my devotion to the Constitution, as will best promote the ultimate purpose of the Union and the Constitution, the cause of human liberty. Were I knowingly to swerve from this straight path, but by the division of a hair, I should be so far false to the glorious mission of an American citizen, and to the obvious duty devolving on a Massachusetts man. Every son of our ancient Commonwealth, who swears to support her institutions, becomes, by that fact, a soldier sworn upon the altar of freedom.
forth is determined by God in the original constitution of his faculties. He is justly deemed responsible only for the tendency in which they may be directed.
It is not any new-fangled doctrine that sets up the means above the end, and says that the parchment is the inestimable treasure, and that the object [purpose] for which that Constitution was made is to be forgotten; that the object [purpose] which our fathers went through a seven years war to accomplish, is to be neglected —it is no such new-fangled doctrine that I maintain. I contend that the Declaration of Independence, the Constitution, and the Union of the United States are valuable, only as long as the purpose of them is valuable. But that these instruments are to be talked of as if they were intrinsically holy, and that the purpose which was in the souls [minds] of those that made them, as it should be in our souls [minds] to-day, is not to be spoken of without incurring the charge of fanaticism or abolitionism—I go for no such new-fangled doctrines as those.
Ed. Note: This refers to slaver denunciations of abolitionists' citing of the pro-freedom, anti-slavery aspects of the Declaration of Inmdependence, of the Constitution, and of the Bill of Rights.
Liberty is the object for which governments are founded; and that government is best administered where the spirit of liberty is best preserved. [Cheers.] If then this be the great object of the Union and the Constitution, and that which makes the Union and the Constitution dear, how is the government to be administered, how is the Constitution to be interpreted?
There have been two great schools of politics in this country since the foundation of our government.
Ed. Note: This refers to "Federalists" vs "Democrats."
To one of these schools I have always belonged. I think the maxims of that school essential to the durability of our institutions. It is not the expediency of party policy which seems to me to be involved. Two great fundamental principles as to how the Constitution is to be interpreted are involved. It is a question on which parties are now divided, and on which they always will divide, till the end of time.
Let us look at that question: The Constitution of the United States creates a government of limited powers. Are they to be held strictly to the limitations of that instrument? or are they to have a system of loose construction which will transcend those powers? That is the great question at the bottom of all our party divisions for sixty year past.
Now I hold, and have always held, that the Constitution of the United States is an instrument which is to be strictly construed; and that the Constitution is the letter of attorney by which the members of Congress are authorized to act, and that they are empowered to do nothing which it does not authorize them to do. That is my doctrine, and it is democratic doctrine. I ask of democrats some application of that doctrine. It is the doctrine on which the government stands, that the Constitution of the United States is to be strictly construed. Nothing is to be established by means of unnatural inferences. Was that the doctrine of those who made the Constitution of the United States?
The Constitution of Massachusetts says that the General Court [Legislature] shall make all laws which are for the benefit of the people which are not forbidden in that instrument. It says the Legislature shall not take away the trial by jury; it shall not abolish the habeas corpus. It forbids that which shall not be done. All else may be done by the Legislature. This is the Constitution of Massachusetts.
The Constitution of the United States, on the other hand, says, this thing you may do; that thing you may do; the other thing you may do; and there it stops. To that, the government of the United States is to be strictly held.
To prevent any misapprehension on that subject, let me say that it was well known that there was one school of politicians [the Federalists] who considered that safety only consisted in following the example of their predecessors, that is, in following the example of Great Britain; who said that we must have a strong government, or we should be in the condition of the Germans, the Italians, and the Greeks, for a long series of years. And history seemed to be in their favor.
were not strong enough. You must not make the government too weak."
Ed. Note: An example of German backwardness was its widespread tobacco use. Germany was "the very land of smokers!" See William A. Alcott, M.D., The Use of Tobacco: Its Physical, Intellectual, and Moral Effects on The Human System (New York: Fowler and Wells, 1836), pp 16-17; Rev. George Trask, Letters on Tobacco (Fitchburg, Mass: Trask Pub, 1860), p 35; John I. D. Hinds, Ph.D., The Use of Tobacco (Nashville, Tenn: Cumberland Presbyterian Publishing House, 1882), pp 63-64, and Meta Lander, The Tobacco Problem, 6th ed. (Boston: Lee and Shepard Pub, 1882), p 308. In contrast, for Americans, non-use was the norm, says J. B. Neil, 1 The Lancet (#1740) 23 (3 Jan 1857). In 1828 nicotine was discovered, C10H14N2. Americans knew "Tobacco is, in fact, an absolute poison."—Journal of Health, Vol 1 (Philadelphia, 1829). In 1836, Americans were told, "A [hu]man will die of an infusion of tobacco as of a shot through the head."—Samuel Green, New England Almanack and Farmer's Friend (1836). Prior to mass advertising, non-smoking was "common" in the U.S., said Prof. Hinds, Use of Tobacco, supra, p. 10.
If we had had a nation in Canada as strong as France, and one in Mexico as strong as Great Britain, and should have been at war with them, or were constantly liable to war with them, perhaps our government would not have stood.
It was not at that [Constitution-writing] time [Summer 1787] to be expected that they [the Founding Fathers] should know how the thing would turn out, because it had never been written in history. They had seen no great successful republican government.
But it is our own fault if we are not wiser by experience.
I say that the school of politicians [the Federalists] who thought the government was not strong enough did not intend to have a strict construction. A gentleman once remarked to Alexander Hamilton, who was one of that [Federalist] school [political viewpoint], that he thought the Constitution was a pretty good instrument. "It depends," replied he, "upon how you construe it."
He [Alexander Hamilton] was in favor of modeling our government somewhat after the English form. He thought that the Minister of the Treasury, and of Foreign Affairs, should step into our House of Representatives as the Premier of England enters the House of Commons, and should there explain the intentions of the government and the relations of other countries to our own. Then he wanted a public debt, because Great Britain had a debt. He wanted a Bank as Great Britain had a Bank. And so on other points, he wanted the government as strong as it could be made. It is my opinion that he was honest in that view.
There was another party [the Democrats, e.g., Thomas Jefferson] who took the opposite view. They said, it is true that confederations have broken to pieces; but there have also been many governments which have progressed until they became despotisms. They laid down the principle that government should not go one hair's breadth beyond the powers given to them.
When the Constitution came up for adoption, many States refused to adopt it, unless there was strong probability that certain amendments would be adopted.
Ed. Note: This refers to the "Bill of Rights."
Now was that Massachusetts doctrine? Most assuredly it was. Massachusetts had a good deal of democracy in her early times. When old Sam Adams drafted this bill of rights, there was a good deal of democracy in him, and a good deal in the people. Here is the Bill of Rights, drawn up in 1780, showing what they thought then.
ART. IV. "The people of this Commonwealth have the sole and exclusive right of governing themselves as a free, sovereign and independent State; and do and forever hereafter shall exercise and enjoy every power, jurisdiction and right which is not or may not hereafter be by them expressly delegated to the United States of America in Congress assembled."
What do they mean by "expressly delegated to the United States?" They say this, in so many words, in language that cannot be mistaken. This is what they meant. They meant that the Government of the United States should not then, or thereafter, assume any power which the States had not expressly delegated to it. And well would it have been if that principle of the majority of the States of the Union had always been adhered to; it would have saved us a vast deal of trouble.
I belong, then, to that school which holds that the Constitution should be strictly construed, and its meaning strictly adhered to.
And when I say this, I have at the same time a great veneration for all the compromises of the Constitution We hear much of them. What are they? I sometimes hear people talk of the compromises of the Constitution in such a way that I think they would be much puzzled if they were to be asked what they are. There were compromises, the non-adoption of which would have prevented the Constitution itself from being adopted by the people. Leading members even went home in despair of effecting a Constitution acceptable to the people. And it was after they had gone, that certain compromises were adopted, which finally insured the acceptance of that instrument. What were they?
Luther Martin who led off this opposition, has left an account of it, and of his own action. The small States refused to come into the support of a combination, unless they could have an equal vote: And the convention came very near breaking up in despair of ever settling that distracting question.
How did they finally settle it? By making this compromise; by saying that in one branch the people should be represented according to population, and in the other the States should be equally represented! New York, Pennsylvania, Virginia and Massachusetts said to the small States, You shall be represented in the one branch according to population; and we will consent to be represented in the other branch by States. The large States were discontented with the equal representation in the Senate. The small States were discontented with the great amount of power which the large States had in the lower house.
This was then the first compromise. It was the great one, because this difficulty came nearer shipwrecking the whole government than any other, and because it was the most important.
The House, apportioned by population.
There was another compromise, and it, too, was important. The immediate occasion of the formation of this government, grew out of difficulties of navigation chiefly in Chesapeake Bay and Delaware Bay. Great difficulties arose on account of the different commercial arrangements which were entered into by the several states. For instance, if Massachusetts laid duties, and Rhode Island did not, goods would be introduced, duty free, into Rhode Island, and smuggled over the line. Ten thousand difficulties were growing up between the different states on this account, and particularly between Virginia and Maryland, concerning the navigation of Chesapeake Bay. These difficulties led to the calling of a convention for the purpose of amending the articles of confederation. It was ascertained at once, that this could not be done. But finally a new attempt was made, which resulted in the formation of this Constitution. The attempt to regulate commerce was in fact what led to the formation of this Constitution. And they were obliged to make a compromise, which we have almost forgotten.
There were some States which were agricultural States, raising tobacco and rice principally, as the cultivation of cotton was then hardly thought of. They were planting States.
Ed. Note: Tobacco is notorious in U.S. slavery.
Then there were also certain States which it was then foreseen would be navigating and manufacturing States. The commerce existed then in some measure, but the manufacturing did not to any great extent.
Now the agriculturists [mostly tobaccoists] said, If we allow Congress to regulate commerce, they will put duties on exports, and thereby shut off the sale of our [tobacco] products. They did not then think that the duties on imports would produce the same effect. They did not think at that time, as seems to be now a favorite notion with some, that the greater the weight of taxation, the better for them and for the people, under the plea that the greater duty would furnish the greater protection to our industry. Neither thinking of that, nor of the effect which would be produced by the taxation of imports, they insisted that Congress should put duties on imports alone.—The revenue on the importation of goods was of great value to New York and Massachusetts. They gave up that, and this bargain was made [Article I, Sections 9-10] between the agricultural states on the one hand, and the commercial on the other, in which they agreed that exports should not be taxed, and that taxes on imports should be equalized.
Ed. Note: Article I, Section 9 says that "No Tax or Duty shall be laid on Articles exported from any State. . . ." Article I, Section 10 says that "No State shall without the Consent of the Congress, lay any Imposts or Duties on Imports or Exports. . . ."
Then came another compromise. They [the Founding Fathers] had not then thought that taxation on all the imported goods was to be regarded as a blessing. Therefore they had never anticipated that all the revenue necessary for the purpose of carrying on the government would be obtained on the imports.
So strong was the feeling against raising a large revenue from imports, that when Hamilton made a report proposing five per cent. duties on some imports, he had to argue at great length to the effect, that though it was a terrible thing, we should submit to it, because it was necessary in order to obtain funds for the government. The taxes on imports, it was not apprehended [then thought], would ever be so high as to defray the expenses of government. On the contrary, they expected that the expenses of government would be defrayed by direct taxation.
Then it became an important question, How shall taxation be apportioned among the people? "Why," said men at the North, "according to population; and let every body, white and black, be enumerated." "No," replied the South, "for here are our southern slaves who do not produce as much as your laborers. We ought not to be taxed according to population."
And not only was there a compromise made on this subject, but they were ready to have their representation diminished by two-fifths of their slaves, which was not much thought of at the time, inasmuch as they obtained as a recompense what was esteemed by them as a great boon, namely, the taxation, also in proportion to their numbers, omitting two fifths of their slaves. This was very much desired at the South and opposed at the North. And the South conquered.
We now talk about taking off the whole of their slave representation. I do not know but that they would have been glad to have had the whole removed, if they could by that means have avoided taxation therefor. That was the point of view from which they then looked upon it. It was, as you perceive, then viewed very differently from what it now is.
In that compromise there was no reference whatever made to a slave, or to the condition of a slave. It is simply a certain mode of ascertaining taxation and representation. It was decided, that to certain persons who were described, they should add three-fifths of all other persons, to obtain the basis of representation and direct taxation.
The reason why that phraseology was adopted, was, that there existed a sort of secret dislike of the institution of slavery; [applause;] a dislike extending to southern men as well as to northern men. Southern men aided in the formation of this Constitution, and in the adoption of this article. Southern men felt a sort of unpleasant sensation at the sound of that word slave, and of that other word slavery, and did not fancy the idea of introducing them [such words] into a document which was to live forever. They contrived to express their ideas, therefore, without mentioning those terms. It cannot be said that this was any compromise on the subject of slavery. It was a compromise on the subject of taxation. They put in something equivalent on the subject of representation.
Ed. Note: See also the more thorough analysis by Lysander Spooner, Unconstitutionality of Slavery (Boston: Bela Marsh, 1845), pp 73-81 and 242-269.
For a rebuttal of slaver thought processes leading to their three-fifths clause viewpoint, see Charles Darwin, Origin of Species (1859) in the context of that era.
ART. 1. Sec. 9. "The migration or importation of such persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the year 1808."
Those who made the Constitution said that this importation should go on in such States as chose to carry it on, for twenty years, and that after that time the federal power may be exerted, and the slave trade shall be stopped. Accordingly, when that period arrived, it was declared piracy. At the moment that the Constitution would allow Congress to act, that moment Congress acted. There was not the delay of a day or an hour. The slave trade was forever prohibited. That is the last of the important compromises.
Now when people talk about adhering to the compromises of the constitution, referring thereby to certain other things which are not compromises, which are not the agreement of two parties, in which each gives way a little for the sake of that which it esteems a greater good, but to those other things which are not alluded to in the Constitution, I should like to have them define what they mean. These which I have mentioned, it is necessary to adhere to.
For why Southerners would be ashamed of their slavery, see examples of its notorious depravities.
Therefore I go on to declare as to certain other clauses, that there are stipulations which are to be construed. And I propose now to construe them.
"Full faith and credit shall be given in each State to the public acts, records and judicial proceedings of every other State."
South Carolina says a certain thing, you are to give full faith to it. That does not say that Congress shall do anything about it.—And the people of the United States did not understand that Congress had the power. The makers of the Constitution did not understand from the extract which I have read, that Congress had any power over the subject; and for this reason, that the close of the section gives to Congress the power which would have been needless had the preceding language conferred it.
"And the Congress may, by general laws, prescribe the manner in which such acts, records and proceedings shall be proved, and the effect, thereof."
What need was there of adding this latter clause if the first was a grant of power? You may read this Constitution through, and you will not find any words wasted. Every word means something. It was put there because it was necessary, and because the meaning would not have been there without it. I say that that first clause did not contain a grant of power; and the men who put it there knew it. They first say that faith shall be given; and then bestow on Congress the power in relation thereto. The powers not delegated to Congress are reserved to the States. That power would have been reserved to the States if not given to Congress in the last clause of this section. Can language make that clearer?
I go to the next section.
SEC. 2. "The citizens of each State shall be entitled to all the privileges and immunities of citizens, in the several States.
Very well! A colored man in Massachusetts goes out from our ports, and goes into one of the harbors of South Carolina. They do not give him the immunities of the citizen of the State. Does any southern man contend that Congress has the power to enforce that section? No! there is no power granted there. There is a declaration of a principle, but it does not say that Congress shall possess the power to enforce it. Therefore they say that South Carolina may make what laws she pleases, and the United States government can do nothing to prevent it. They adopt one rule for this clause, and another rule for another clause in the same section.
But do I say that Congress has the power to enforce action in consonance with this clause, in the harbor of Charleston? No! I choose strict construction on all these clauses. I adopt the rule of strict construction in them all, and not a strict construction in one and a loose one in another.
Ed. Note: But see the opposite view by Chief Justice Roger Taney, "the constitution of the United States declares, that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states. And although the privileges and immunities, for greater safety, are placed under the guardianship of the general government; still the states may, by their laws, and in their tribunals, protect and enforce them. They have not only the power, but it is a duty enjoined upon them by this provision in the constitution." Reference dissent, Prigg v Pennsylvania, 41 US (16 Pet.) 539, 629; 10 L Ed 1060 (1842).
"A person charged in any State with treason, felony, or any other crime, who shall flee from justice and be found in another State, shall, on demand of the Executive authority of the state from which he fled, be delivered up, to be removed to the State having jurisdiction of the crime."
Under that clause no serious difficulty has arisen. The States have given up criminals, and no State has of late years objected to it.
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any law or regulation therein be discharged from such service or labor."
To whom is that directed? To the States or to Congress? To the States! It says, "no person shall be discharged by any law or regulation of the States" That is a regulation addressed to the States and not to the Union. And then it goes on to say, "But shall be delivered up on claim of the party to whom such service or labor may be due."
In the case of a person charged with crime, the rule is, that he shall be removed to the State having jurisdiction of the crime. Now, if the first part of this section is addressed to the States, then to whom is the subsequent clause addressed? For it does not go on to say Congress shall make the laws, but it says you shall deliver up. How can any person contend that one [clause] is addressed to the States and the other not?
There is not, then, in this clause, a delegation of power to the United States government to pass any law about fugitives from labor. There is a direction that certain things shall be done, and that certain other things shall not be done. And that is directed to the States. A fugitive shall not, by any law or regulation of that State, be discharged. That is addressed to the State.
Ed. Note: See also the more thorough analysis by Lysander Spooner, Unconstitutionality of Slavery (Boston: Bela Marsh, 1845), pp 67-73.
as March 7, 1850. I come to the conclusion, that this section of the Constitution was addressed to the States. I quote Mr. Webster's opinion for this reason, that he has always gone rather further in favor of increasing the power of the government than the Democratic party. Mr. Webster has gone further than we have. He has allowed [said he believes that] a National Bank to be [is] constitutional. I might give other cases.
His [Webster's] mind [viewpoint] is of such a nature that it has a tendency to extend the powers of the United States government a great deal further than the Democratic party have thought it right. I am not now criticizing his opinions in favor of enlarging the powers of the government. He has been a Federalist all his life, belonging to a party who have been inclined to give great power to the United States government. It is not at all unlikely that if the power had [supposedly] existed in the Constitution, he would there have found it. He says particularly that he thought it [the above Art. IV § 1 clause] was directed to the states, and not to the general government.
The United States Supreme Court have made a decision to the contrary. That is a fact which stares us full in the face.
Ed. Note: The U.S. Supreme Court is the worst court in the world, see Joel Tiffany, A Treatise on the Unconstitutionality of American Slavery (Cleveland, Ohio: J. Calyer, 1849), p 49. Here, as Rantoul shows, is another example!
In the case of Prigg vs. the State of Pennsylvania [41 US 539; 10 L Ed 1060 (1842)], they decided that the States have no right to legislate for the carrying into effect of this section, but that the power thereof lies in Congress.
Why, my friends, two sets of dangers have always threatened this government in the view of the people; one party has feared that it might fall to pieces; the other that it might become too strong. Which have we now most reason to apprehend? Is there any danger that our government will prove to be too weak?
Originally, one fear was that they [the federal government] could not raise money enough to defray the expenses of the government. They [such Founding Fathers] did not think of obtaining a revenue by the taxation of imports to such an extent as to raise thirty or forty millions of dollars. They thought of one million, one and a half or two millions of dollars.
The dangers that the general government could not enlist powerful men; that it could not raise money enough for its expenses, have disappeared in smoke and mist, and we can now hardly conceive of such dangers.
But the contrary danger is more and more a reality. There may be a continual accumulation of power by the general government. There may be such an increase of taxation as to crush the community. There may be a large standing army. Nobody thinks of any objection to adding a million or five millions of dollars for the support of the army or navy. But add a few thousand dollars to the salary of the Judges of the United States, and there will be a great outcry about the lavish expenditure of the government.
I say that the constant increase of power of the general government does seriously affect the interests of the community. If that be so, how is it to be cured? How is it to be prevented? For prevention is easier than cure. It is to be prevented by the strict construction of the Constitution. And this becomes every hour more necessary, not only because it will prevent the enlargement of the power of the government, but in consequence of the great extent of our territory.
tution to carry it as far as the necessity went, I am for carrying it as far as that necessity demands.
But having done that I would not allow the general [federal] government to go into any exercise of power which is not delegated to it. Since the [wrong Supreme Court] decision of the case of Prigg, the States [stripped of power over fugitives] have thought they were not responsible for what was done. They have therefore in some cases refused the use of their jails, and the assistance of their officers, for the recapture of fugitive slaves. The United States government now go on [expand federal power] and legislate [on this state matter].
It would be easy to illustrate in a thousand ways, the evils that may grow in the future history of the country out of this disposition of the general government to encroach upon the rights of the States—to show that the fears of Thomas Jefferson, and Samuel Adams, and Patrick Henry, and Elbridge Gerry—fears of indefinite usurpation tending towards, and finally terminating in consolidated federal despotism, may perhaps some day be realized.
I prefer to take this precise evil in order to illustrate the effect of this tendency. A law which is made by a State, is likely to be suited to what is to be done. The State of Massachusetts knows what her people can bear, and what they cannot bear. But if a law is to be made contrary to the sentiments of any State, it will be impracticable to carry it out in that State.
Ed. Note: In modern terms, note "Red States" vs "Blues States" (2000, 2004).
Is that a power likely by its exercise to tend to the perpetuation of the Union, by carrying out this law?
I propose to perpetuate the Union by checking the power of the General [Fedral] Government, by confining it within its legitimate sphere of action, to those concerns upon which it may act for the common good, without arousing indignation and hatred in one section against the other; sometimes driving South Carolina to the brink of rebellion by the galling weight of unjust and intolerable taxation, and sometimes outraging all that is honest and patriotic in puritan Massachusetts, by leveling at a single blow all those bulwarks of liberty, which barons bold and sages grave in the olden time, and the Republicans [under Oliver Cromwell] who brought the Stuart [Charles I.] to the block, with those who broke the yoke of the house of Hanover in later days, had labored, each in their generation since the twelfth century, to erect; which it is the proudest prerogative and boast of Britain that she possesses; and which constituted the richest inheritance that our fathers received from the mother island empire.
But we are told that these are measures of conciliation, measures of peace. Enforce this law, and we shall have peace and quietness, it is said. How? Is one-third of the white people of the United States to dictate to the other two-thirds, and call their submission peace? I admit [fear, anticipate] that these slave interests may set one part of the country against the other.
attempting to overthrow the U.S. government in 1861.
But, sir and gentlemen, as this subject is one of great interest, and as the manner in which it has been most commonly discussed is different from the course I have pursued, allow me to go one step further. If it be granted, which I do not grant at all,—if it be granted that the United States government has the right to make a law upon this subject, under the fourth article, let us inquire what sort of a law it gives them a right to make; for that is a matter of great consequence.
A man charged with crime shall on demand he delivered up! That is the law.
What have you to ascertain before you give him up? Simply that he is charged! That means, that he is charged by some responsible person, on what a lawyer would call good and probable cause, upon which charge, so far substantiated, the executive of the State from which it is alleged that he fled, demands him, by a formal written requisition.
Where shall he be tried? Where he is charged! It is a privilege to the party charged with crime that he shall be tried where the crime is alleged to have been committed. This is inserted for the benefit of the person charged with crime. So that, if a person be charged with crime, let him go back to the place where it is alleged that the deed was committed, for there he can most easily prove his innocence. This is based on a very ancient principle of the English common law.
The question to be decided is, Is the man charged? Does a responsible man who would be convicted of perjury if it were not true, swear that he committed the crime? If so, we will take his oath and send the accused man back. We will take the requisition of the executive as proof that such a charge has been made. He does not have his trial where he is found, but only his preliminary trial there. The preliminary inquiry in such a case may be accomplished by a summary process, for it includes little more than the verification of the authority under which he is demanded, and proof of the fugitive's identity.
It is not necessary to have a jury in Massachusetts to try a man who is charged with having committed a murder in New York. You could not conveniently, him a fair and full trial here. You, therefore, go through a summary process to determine whether it is necessary to send this man back.
I go next to the succeeding clause. I know that the men who made this Constitution knew what they were about, and did not put a single clause here, or a single word here, without meaning. There is no book in the English language, of which the construction is so plain, as the constitution of the United States. If a man comes to it with a sincere and honest heart, and will take the trouble to compare one portion with another, he cannot fail to come to a right conclusion.
"No person held to service or labor in one State under the laws thereof escaping into another, shall in consequence of any law or regulation therein be discharged, &c."
There is a very extraordinary difference of language between this section and the preceding One. In that it was "a person charged" with crime. There was probable cause to believe that he might be guilty. But in this section, is it a person charged with being held to service? a person that somebody swears was held to service? The Constitution tells you what it is: "No person held to service or labor, &c." If he is not held, he is not liable.
"No person held to service or labor in one State, under the laws thereof, escaping into another, shall in consequence of any regulation therein, be discharged from such service or labor; but shall be delivered up, &c."
Why, is it not quite clear how this question whether he be held to service or not, should be decided? What is the principle of the Constitution of the United States on that subject? For there is a principle laid down here. There is very little left out that ought to be in this Constitution. There is laid down here the rule that no man shall "be deprived of his life, liberty, or property, without due process of law." That is in the 5th article of the amendments of the Constitution of the United States.
Now I take it, if you seize a colored man, or you may seize a white man under the operation of this law, if you seize any man in Massachusetts under this fugitive slave law, the first question is, Shall he be deprived of liberty?
You are not to take it for granted that he is a slave. All presumptions of law are in favor of liberty. It is a maxim older than Christianity itself, Presumitur pro libertate; that the presumption is always to be in favor of liberty.
Ed. Note: This concept was the whole point of the exhaustive reference book by Edward C. Rogers, Letters on Slavery Addressed to the Pro-slavery Men of America, Showing Its Illegality in All Ages and Nations: Its Destructive War Upon Society and Government, Morals and Religion (Boston: Bela Marsh, 1855).
Ancient Roman law, "that by nature all men are free [a legal principle] as old as ancient Rome; and the law of Rome repeatedly asserts, that all men by nature are free, and that slavery can subsist only by the laws of the State. (Digests, B. 1, T. 1, s. 4; B. 1, T. 5, ss. 4, 5.)" Cited in People ex rel. Napoleon v Lemmon, 5 Sand SCR 681; 7 N Y Super 681 (12 Nov 1852) aff'd 26 Barb 270, 287-289 (30 Dec 1857) aff'd 20 NY 562; 1860 WL 7815 (March 1860).
Senator Charles Sumner reference to slaver writings re both black and white slavery, in The Barbarism of Slavery (Washington, 1860), p 220.
I go on then upon the Constitution of the United States, and I say this man found in the State of Massachusetts is presumed to be free; and therefore, when you seek to make a slave of him, the question is, Shall he be deprived of his liberty? He has his liberty. Shall he be deprived of it? The Constitution says he shall not be deprived of his life, liberty or property, without due process of law.
What is "due process of law?" Let me say why it was that that [Fifth Amendment] clause was put there. For all these safeguards are inserted in the Constitution by its framers, or by those who amended it, because they knew what had happened in the past. Men had been deprived [in England] of their lives, their liberty, and their property, without due process of law.
press purpose of trying a certain man. Commissioners were appointed who went down and tried the case without a jury, and without a public hearing and without confronting the witnesses. In that way men's liberties have been taken away.
This [abuse, denying people a jury trial] was no new thing under the Stuarts. It had been done [for centuries] under the Tudors, under the Plantagenets, and even before the Plantagenets. This very ancient abomination [refusal of a jury trial], this hoary [ancient] survivor [relic] of the iniquities of a thousand years had been among the causes of the civil wars between the monarch and the subject, in which British swords were sheathed in British hearts, till the genuine Norman nobility was almost exterminated from the land. It [the refusal of a jury trial] was denounced in all the Bills of Rights in the English language, and in charters before the English language was known, in Magna Charta, before Magna Charta, and perpetually in all proclamations of liberties afterwards.
When this [due process] article was added to the Constitution [in the Fifth Amendment], those who did it [the Founding Fathers] meant to guard against these usurpations of power. Governments are the same in all ages, and these things might be done in our nation as well as elsewhere. No man shall "be deprived of life, liberty, or property, without due process of law." By due process of law, they meant in due process of proceeding in common law. It was the taking away of the trial by jury, it was the taking away of the habeas corpus, it was Star Chamber doctrine—it was all this against which they [the Founding Fathers] acted.
"In suits at common law where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."
Ed. Note: The Seventh Amendment in the Bill of Rights also includes reference to "common law." This underlies basis for the right to pure air.
And they supposed when they had secured both criminal prosecutions and civil suits, that they had covered everything. They meant to cover all things, except well known and well defined proceedings in admiralty, proceedings in chancery, and also courts martial. They meant to include all save those exceptional cases, and they did not suppose that anybody would imagine that the trial of a man's liberty was one of these. The writ to ascertain whether a serf belonged to the lord who claimed him, is one of the oldest in the common law.
Will any one rise up and say that a man's liberty is not worth twenty dollars? If a man owes another eighteen or twenty dollars, and it costs a hundred dollars to get it, he would certainly better not have a jury to try the case. All sums below twenty dollars cannot be tried by a jury for this reason, viz., that it would cost more than that to try the case.
"In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved."
Now the Supreme Court of the United States have decided (in the case of Lee against Lee [8 Peters 44; 4 Cranch C. C., 643]) that a man's liberty is worth to him, in all cases, more than one thousand dollars, and that where there is no appeal unless the amount in controversy exceeds one thousand dollars, if the liberty of the party be brought in question, he shall have his appeal.
Ed. Note: A similar point about one's liberty being worth $1000 would be made by Honorable Horace Mann, in his book Slavery: Letters and Speeches (Boston: B. B. Mussey and Co., 1853), p 303.
See also the reference to Lee v Lee, 8 Peters, 44; 4 Cranch C. C., 643, in The Slavery Code of the District of Columbia, first Note.
before I ran the risk of perpetual servitude, by being carried into a slave State.
But that is not all. Suppose that every man who claims a fugitive slave were as wise as Solomon, and as upright as Sir Matthew Hale.
Ed. Note: Sir Matthew Hale (1609-1676) was an English Chief Justice known for honesty.
Suppose he [the slave-claimant] were determined to give the alleged fugitive [slave] a fair trial in a Slave State. —What follows? Simply, that in the Slave-holding States, the rule of law is opposite to what it is here. Here he is a freeman till he be proved to be a slave. There he is a slave till he be proved to be a freeman.
The rule at the South is, that a colored man is a slave till he be proved free. He may be free and unable to prove it, because he has lost his free papers. He may be free because his mother and grandmother were free before him, and they might not be able to testify in a Southern court.
Ed. Note: Slave states banned slaves from testifying against whites.—H. B. Stowe, Key (1853), p 241.
I will go no further, but simply read these resolutions which I believe embody the substance of what I have said, and leave them to your decision. I have made this explanation, though I knew that it would he distasteful to some persons who have heretofore voted for me. I want them to show their numbers in favor of the expediency of making a change in the candidate. I want the Democratic party to strike out [decide] the course which they will choose to pursue, and I think they need no assurance from me that in any course they may adopt, for the furtherance of sound democratic principles, the ancient principles of old fashioned liberty, they will find in me a zealous coadjutor [advocate].
The resolutions were then put to vote, and the response shook the hall like thunder. And they were passed by an overwhelming aye, to one solitary "no"!
Mr. Rantoul was then unanimously re-nominated for Congress.
Ed. Note: He was elected as a Representative, and soon thereafter as a U.S. Senator.
Ed. Note: This is one of the four abolitionist constitutional-law writings cited by the historical document reference book by William H. Pease, Ph.D., and Jane H. Pease, Ph.D., The Antislavery Argument (New York: Bobbs-Merrrill Co., 1965), pp 370-383. That book contains "representative selections [of] the many dimensions and varieties of antislavery thought."
Rantoul did not just talk about the cited rights. He fought in court for them. See, e.g., J. Stone, reporter, Trial of Thomas Sims on an Issue of Personal Liberty, on the claim of James Potter of Georgia, against Him, as an alleged Fugitive from service. Arguments of Robert Rantoul, Jr. and Charles G. Loring, with the Decision of George T. Curtis, Boston, April 7-11, 1851 (Boston: W. S. Damrell & Co., 1851).
Rantoul, Robert, Jr. Memoirs, Speeches and Writings of Robert Rantoul, Jr., Edited by Luther Hamilton (Boston: J.P. Jewett and Co., 1854).
Ed. Note: Thomas Sims had been seized on a charge of being a fugitive slave. A petition for a write of habeas corpus was filed in the Massachusetts court demanding that the claimant provide proof of the claim. Congress had, however, passed a federal law (the "Fugitive Slave Act") in 1850, specifying that only federal courts would handle such matters. The law had, however, provided that, not federal judges, but mere "commissioners," would adjudicate such cases. In his legal brief filed just four days after his above 3 April 1851 speech, Rantoul argues on 7 April 1851 that the said federal law was unconstitutional.
R. Rantoul, Jr., for the petitioner.
The power which the commissioner is called upon in this proceeding to exercise is a judicial power, and one which, if otherwise lawful, can be exercised only by a judge of the United States, duly appointed; and the commissioner is not such a judge. He has therefore no jurisdiction of this case, and this court should order the petitioner to be discharged. Opinion of Tilghman, C. J., Commonwealth v. Smith, 5 American Register, 168, 171.
"the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as the congress may from time to time ordain and establish. The judges both of the supreme and inferior courts shall hold their offices during good behavior, and shall at stated times receive for their services a compensation which shall not be diminished during their continuance in office."
The power here given is the whole judicial power of the United States; and congress has no authority to confer any portion of judicial power on any other persons. Martin v. Hunter, 1 Wheat. 304, 327, 330 [14 US 304; L Ed (1816)].
A commissioner is not a judge within the meaning of the constitution, for he is not appointed to hold his office during good behavior, but at the pleasure of the circuit court of the United States; and he does not receive a compensation for his services at stated times, but is paid by fees, the amount of which depends on his decision—being ten dollars if he decides for the claimant, and five if he does not. Act of 1850, c. 60, § 8. The commissioner cannot, therefore, exercise judicial power.
Now, are the duties of the commissioner, under this act, an exercise of judicial power? The constitution of the United States, in art. 3, § 2, provides that "the judicial power shall extend to all cases in law and equity arising under this constitution, the laws of the United States, and the treaties made, or which shall be made, under their authority." See, on the construction of this clause, Cohens v. Virginia, 6 Wheat. 264, 379, 407 [19 US 264; 5 L Ed 257 (1821)]; Parsons v. Bedford, 3 Pet. 433, 446 [28 U.S. 433 (1830); L Ed]. The proceedings, provided for by the act of 1850, of themselves constitute a case within the meaning of this clause. Any proceeding whereby a party invokes the aid of any tribunal to render him any right, which he demands, and which is denied or withheld from him, constitutes a case.
"Where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property, capable of being recognized and asserted by proceedings before a court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case 'arising under the constitution' of the United States, within the express delegation of judicial power given by that instrument." By Story, J., delivering the opinion of the supreme court of the United States, in Prigg v. Pennsylvania, 16 Pet. 539, 616 [41 US 539, 10 L Ed 1060 (1842)].
If this be not so; if the commissioner be not required to decide this question, but only whether the alleged fugitive shall be taken back to the state from which he is alleged to have fled, the act is yet more grossly unconstitutional; for art. 4, § 2, of the constitution only authorizes a "person held to service or labor" to be delivered up; not one merely charged, or claimed. By contrasting this with the preceding paragraph, concerning fugitives from justice, the difference between the two cases appears clearly. That paragraph provides, that "a person charged in any state with treason, felony or other crime, who shall flee from justice," shall be delivered up; and the reason is, that he may be tried by a jury of the vicinage in which the crime is said to have been committed.
A prima facie case is all that is required in the case of a fugitive from justice. But it is not all in the case of an alleged fugitive from service, who is the inhabitant of a free state. He is here presumed to be free. [Massachusetts] Declaration of Rights, art. 1. And the constitution of the United States does not allow him to be given up, to be carried thousands of miles from his home and friends, to be tried, if tried at all, in a state where all the presumptions of law and fact are against him on account of his color; and with no security that he will be able to obtain a trial.
If the act requires that the alleged fugitive from service shall be sent back, without finding out whether or not he be actually held to service under the laws of another state, the act is unconstitutional, because there is no power given to congress by the constitution to pass such an act. Congress, if it has any power in the premises, can only pass an act declaring that the person held shall be delivered up. If congress undertakes to do more, its acts are void. On the other hand, if it is first to be ascertained whether or not the party claimed be really held to service, then the decision of the commissioner is final on this question; his decree is the last act of judicial power, which power the commissioner has no authority, under the constitution, to exercise, not having the unchangeable salary or the permanent tenure of office, without which no man can constitutionally be made a judge.
Congress has no power, under the constitution of the United States, to legislate at all on the subject of fugitive slaves. The government of the United States is a government of limited powers. It has no powers that are not expressly delegated to it by the constitution. The powers not expressly delegated to it, are reserved to the states respectively, or to the people. Const. of U. S., Amendments, art. 10; [Massachuetts] Declaration of Rights, art. 4. The force of this argument, as applied to the subject of fugitive slaves, will better appear by an examination of the previous clauses of the fourth article of the constitution.
"full faith and credit shall be given in each state to the public acts, records and judicial proceedings of every other state."
"And the congress may by general laws prescribe the manner in which such acts, records and proceedings shall be proved, and the effect thereof."
"citizens of each state shall be entitled to all the privileges and immunities of citizens in the several states."
This is a direction to the states, and to no one else. There is no power given to congress to act, as there is in the first section; and congress has never acted on any such supposed power.
"A person charged in any state with treason, felony or other crime, who shall flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he fled, be delivered up, to be removed to the state having jurisdiction of the crime."
This clause does not necessarily imply that it must be executed by congress; for it can be executed by the states. The duty enjoined by it is now performed by the states, though regulated by a federal law. But a state might make regulations on the subject, as well as congress. And the constitution declares [in, e.g., the Ninth and Tenth Amendments], that what is not expressly delegated to the general government is reserved. Therefore congress has no power to legislate on the subject of fugitives from justice.
But the objection is still stronger, as applied to the third paragraph, which is the one now in question. So far from any power being granted to congress, direct reference is made to the states.
"No person held to service or labor in one state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up, on claim of the party to whom such service or labor may be due."
The prohibition, in its form, as well as from its nature, is directed to the states only; and so is the command to deliver up. This clause stands precisely as the first section would have stood, if no power had been expressly granted therein to congress.
Ed. Note: His conclusion was, that the writ of habeas corpus should be granted and Mr. Sims should be released.
Sadly, due to the Slave Power, the Court evaded the points raised, did not directly respond on-point, digressed irrelevantly, and refused to grant the relief sought.
cited a number of anti-slavery court precedents including The French Slave Case, 13 Causes Célèbres 49 (1738); Somerset v Stewart, 20 Howell's State Trials 1 (1772); Sewall's Slaves, 3 Am Jurist 404 (Indiana, 1829); and Commonwealth v Aves, 35 Mass (18 Pick) 193 (27 Aug 1836), a habeas corpus case, which in turn cited earlier cases, e.g., Littleton v Tuttle, 2 Dane Abr 413 (1796) and Winchendon v Hatfield, 4 Mass 123 (1808).
Explanation for citing a French case: French policy stated in 1571, affirmed in 1607, said: "All persons are free in this kingdom; as soon as a slave has reached these frontiers and becomes baptized, he is free."
This case had been cited in briefing in Somerset v Stewart, 20 Howell's 1, 12 (1772). That "precedent had become part of American common law."—William M. Wiecek, "Somerset's Case," Encyclopedia of the American Constitution, Leonard W. Levy and Kenneth L. Karst, eds. (New York: Macmillan Reference USA, 2000), Vol 5, pp 2451-2452.
Philip S. Foner, History of Black Americans from the Compromise of 1850 to the End of the Civil War (Westport, Conn.: 1983), pp 39-42.