Posted on 01/03/2022 7:37:26 AM PST by ProgressingAmerica
Frederick Douglass defends the Constitution. Many abolitionists in his day had misguided views about the Founding Fathers and the Constitution. Douglass was ready to set them straight.
Well not really. We pretended to ratify the 13th amendment, but it wasn't a valid ratification. You cannot have armies in the State capitols of 11 states threatening the legislature and the populace with dire consequences if they do not do exactly what Washington DC orders them to do.
We had 11 puppet governments "ratifying" the 13th amendment, but it was really Washington DC voting 11 times to give itself more power. No one dared defy the power of the Army, and it was the Army that passed the 13th amendment.
This is not how a constitutional amendment is supposed to work. Agreements made under duress are regarded as invalid in our legal system, but everyone looked the other way when this tactic was used to "ratify" the 13 amendment.
Do not think for a moment that this ratification represented the actual will of those 11 states. It was clearly coerced out of them.
Be honest. The two hold-out States were, namely, Georgia and South Carolina.
I do not know what is true on this point because I have not bothered to research it. I don't see why it matters anyway, as the rest of them agreed to what we ended up with.
Thanks for ping. Frederick Douglas was a great man. He had first hand experience of being a black slave on a plantation, with harsh whippings and brutal treatment. He rose above it to become a brilliant voice for his people and for America. A truly great American. Thanks again for sharing his thoughts on the Constitution and it’s role in Slavery.
There were a few Black slaveowners. There was a fear that if someone couldn’t prove they weren’t Back they could be enslaved, but I’m not aware of white slaves after the Revolution. Before the Revolution, in the early days of colonization, the line between Black slaves and White indentured servants wasn’t that clear, but the Black- White divide was wider and deeper later.
I question this, I have doubts as to if you truly mean this. The argument is indeed made, and it's made strikingly well, right here. Should I repeat myself? I suspect you meant the word "hear" in a traditional discussion forum sense, but here's the issue.
You can literally hear this argument. The link I posted goes to Rumble. It's recorded audio. All you have to do is sit back, and listen. In listening, you'll get to hear it.
It's the easiest job ever and a unique service that I offer. You're welcome.
But don't say you want to hear something thinking it makes you look conciliatory among other forum participants while at the same time refusing to hear it. Pick one and just go with it. I also gave the links to the text. Why do I suspect you didn't read the text either but just immediately pressed "reply"?
Full disclosure: The reason I let you know that I recorded this was because of the schism between Douglass and the Garrisonians. Based on past comments you have made, I’m not sure you had known this took place. Garrison was an ardent Constitution attacker. Douglass was the exact opposite.
I’m particularly curious as to your take (as a Civil War enthusiast) about the 3/5ths compromise as a disability, rather than they way progressive historians pervert the issue and promote it as a huge boon to slavers. In short, you know my usual phrase - progressives are big fat liars.
With that being out there, I think what user Retain Mike said at post 14 is correct. Its pretty much the same thing that Douglass argued in the speech.
At the Convention, the Southern States wanted full representation for their slaves. In other words, the South wanted 5/5ths. Do you agree with this?
Great new book, “Freedom National,” which shows that even BEFORE the Constitution (i.e., Articles) the U.S. was moving toward “Freedom national, slavery local” model that doomed slavery at some point.
It’s a long, but thorough convincing read, mostly because BOTH pro-slavers and abolitionists saw exactly the same thing: that the wording in the Constitution and all other documents excluded slavery (i.e., property) and spoke in terms of “personhood” (as in “unfree PERSONS”). This meant legally, sooner or later, slaves as property would lose in the courts.
Not the rights to life, liberty & pursuit of happiness. All wording in the Constitution is for “persons,” not “property.” So states had no authority to deem persons as property.
Great read, “Freedom National,” shows that slavery was virtually ended the moment northern Rs figured this out in the 1830s.
No, far, far more complicated. The Constitution which GUARANTEED that “all men are created equal” by law never once referred to slavery. Slaves were NOT viewed constitutionally in cases that came before the US courts prior to Dred Scott as “property,” only as “unfree PERSONS.” The battle between personhood & property always results in personhood winning.
This was specifically due to the fact that the Constitution overrode state laws that denied the right to life, liberty, and the pursuit of happiness, and is seen in the second national law ever passed, really, the NW Ordinance that prohibited slavery in the Old Northwest.
So freedom was interpreted as “national” and slavery “local.” This is borne out in the massive numbers of letters/speeches in BOTH the North & South.
See “Freedom National” by James Oakes. And this ain’t “revisionist history” any more than our “Patriot’s History of the United States” is revisionist history.
Just curious, how much do you know about the "Redemptioners" who often came to the 13 colonies as indentured servants?
I think these were different than traditional indentures in that they negotiated their terms only AFTER they arrived, which made them I would guess somewhat stronger in their negotiating position.
bfl
This is very interesting. Thank you.
I had not heard about redemptioners until this mention of them from Douglass. Do you think his assertion that the “fugitive slave clause” is misnamed and (to coin a phrase) is more accurately described as the fugitive redemptioners clause?
It really frustrates me how much of this history has been stolen from us. Every day its something new.
I question this, I have doubts as to if you truly mean this. The argument is indeed made, and it's made strikingly well, right here. Should I repeat myself? I suspect you meant the word "hear" in a traditional discussion forum sense, but here's the issue.
Well firstly, I said "if you have an argument to support this, I would like to hear it." *You*. Not Frederick Douglas. The reason I don't want to hear his argument as a substitute for yours is because I took the time to read it, and found it uncompelling in light of the evidence against it.
I thought perhaps you would put forth a different, better argument.
Why do I suspect you didn't read the text either but just immediately pressed "reply"?
People see what they want to see and believe what they want to believe. I think this is true of you as it is of most people.
I try to be objective. You have a tall order trying to demonstrate the constitution did not lean toward slavery, and I have yet to see anything compelling in this regard either from yourself or Frederick Douglas.
I agree with Douglas' sentiment, but his argument is not very good. It is an "appeal to emotion."
Interesting that you mention this. I was this very morning thinking about this 3/5ths thing. It is my understanding that the Northern states bitterly resented the fact that the Southern states got greater representation for their white population because of the counting of the slaves for purposes of representation.
This causes the Northern white population to have less control over Washington than the Southern white population, and any sort of inequality will always fuel hatred of the group getting the favorable treatment.
The thought occurred to me that this resentment may be the actual driving force behind so much of the politics between the Northern States and the Southern States.
We are told that the resentment was over the morality of slavery, but resentment over the loss of power seems a very plausible explanation. People will often color their morals to reflect what is in their economic self interests.
The Southerners decided slavery was moral and upheld by the bible. Could this be a coincidence, or were they shading their morals to coincide with the economic advantage such a position bestowed on them?
When it comes to human motivation, I will always believe self interest over altruism. This is not to say there isn't altruism, but such assertions should always be looked at with a gimlet eye. Like as not, you will find some economic advantage at the end of their proclaimed morality.
At the Convention, the Southern States wanted full representation for their slaves. In other words, the South wanted 5/5ths. Do you agree with this?
Yes they did, and the non slave states wanted no representation for slaves. The compromise of 3/5ths was agreed upon, but as I mentioned, I think the non slave states bitterly resented this compromise and I think it drove their hatred of the Southern states.
Here I agree with you. I have read his account of how he learned to read and how he escaped slavery, and he is indeed a very impressive fellow.
They probably did. I'm only concerned with a focus on the clause itself.
The south was always going to get _something_ otherwise there wouldn't be an America. That's all that matters. The South was always going to get something.
The Douglass argument has no basis in law. It is legal nonsense.
https://www.oyez.org/cases/1789-1850/41us539
Petitioner
Edward PriggRespondent
Commonwelath of PennsylvaniaDocket no. None
Decided by Taney Court
Citation 41 US 539 (1842)
Argued Feb 8 - 10, 1842
Decided Mar 1, 1842 p> Facts of the case
The Pennsylvania legislature passed laws in 1788 and 1826 prohibiting the removal of Negroes out of the state for the purpose of enslaving them. In 1832, a black woman named Margaret Morgan moved from Maryland to Pennsylvania. Although she was never formally emancipated, her owner John Ashmore granted her virtually full freedom. Ashmore's heirs wanted her returned as a slave and sent Edward Prigg to capture her in Pennsylvania. After returning Morgan to Maryland, Prigg was convicted in a Pennsylvania court for violating the 1826 law. Prigg unsuccessfully argued before the Pennsylvania Supreme Court that both the 1788 and 1826 laws violated the constitutional guarantee of extradition among states and the federal government's Fugitive Slave Law of 1793.
Question
Did Pennsylvania's law prohibiting the extradition of Negroes to other states for the purpose of slavery violate Article IV, Section 2 of the Constitution? Did the law violate the Fugitive Slave Law of 1793 as applied by the Supremacy Clause?
Conclusion
Yes and yes. Justice Joseph Story delivered the opinion of the Court. The 1788 and 1826 Pennsylvania laws contradicted Article IV, Section 2 of the Constitution and the Fugitive Slave Law. The Supremacy Clause assured that federal laws prevailed over the state laws. The decision did not wholly end asylum across state lines for slaves. Story granted that the state laws put in place by slave states to recapture slaves in free states only had to be enforced by federal officials, and not state magistrates.
Cite this page
APA | Bluebook | Chicago | MLA
"Prigg v. Pennsylvania." Oyez, www.oyez.org/cases/1789-1850/41us539.
Accessed 4 Jan. 2022.
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https://supreme.justia.com/cases/federal/us/41/539/
Prigg v. Pennsylvania, 41 U.S. 539 (1842)
Page 41 U. S. 608MR. JUSTICE STORY delivered the opinion of the court.
This is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the Judiciary Act of 1789, ch. 20, for the purpose of revising the judgment of that court, in a case involving the construction of the Constitution and laws of the United States. The facts are briefly these:
The plaintiff in error was indicted in the Court of Oyer and Terminer for York County, for having, with force and violence, taken and carried away from that county, to the State of Maryland, a certain negro woman, named Margaret Morgan, with a design and intention of selling and disposing of, and keeping her, as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826. That statute, in the first section, in substance provides that, if any person or persons shall, from and after the passing of the act, by force and violence, take and carry away, or cause to be taken and carried away, and shall, by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away or seduce, any negro or mulatto from any part of that Commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto, as a slave or servant for life, or for any term whatsoever, every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars, and moreover shall be sentenced to undergo servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years, and shall be confined and kept to hard labor, &c. There are many other provisions in the statute, which is recited at large in the record but to which it is in our view unnecessary to advert upon the present occasion.
The plaintiff in error pleaded not guilty to the indictment, and, at the trial, the jury found a special verdict which in substance states that the negro woman, Margaret Morgan, was a slave for life, and held to labor and service under and according to the
Page 41 U. S. 609
laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in error, being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837 caused the said negro woman to be taken and apprehended as a fugitive from labor by a state constable under a warrant from a Pennsylvania magistrate; that the said negro woman was thereupon brought before the said magistrate, who refused to take further cognizance of the case; and thereupon the plaintiff in error did remove, take and carry away the said negro woman and her children out of Pennsylvania into Maryland, and did deliver the said negro woman and her children into the custody and possession of the said Margaret Ashmore. The special verdict further finds that one of the children was born in Pennsylvania more than a year after the said negro woman had fled and escaped from Maryland.
Upon this special verdict, the Court of Oyer and Terminer of York County adjudged that the plaintiff in error was guilty of the offense charged in the indictment. A writ of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From this latter judgment, the present writ of error has been brought to this Court.
Before proceeding to discuss the very important and interesting questions involved in this record, it is fit to say that the cause has been conduced in the court below, and has been brought here by the cooperation and sanction, both of the State of Maryland and the State of Pennsylvania in the most friendly and courteous spirit, with a view to have those questions finally disposed of by the adjudication of this Court so that the agitations on this subject in both States, which have had a tendency to interrupt the harmony between them, may subside, and the conflict of opinion be put at rest. It should also be added that the statute of Pennsylvania of 1826 was (as has been suggested at the bar) passed with a view of meeting the supposed wishes of Maryland on the subject of fugitive slaves, and that, although it has failed to produce the good effects intended in its practical construction, the result was unforeseen and undesigned.
1. The question arising in the case as to the constitutionality of the statute of Pennsylvania, has been most elaborately argued at the
Page 41 U. S. 610
bar. The counsel for the plaintiff in error have contended that the statute of Pennsylvania is unconstitutional, first, because Congress has the exclusive power of legislation upon the subject matter under the Constitution of the United States and under the act of the 12th of February 1793, ch. 51, which was passed in pursuance thereof; secondly, that, if this power is not exclusive in Congress, still the concurrent power of the state legislatures is suspended by the actual exercise of the power of Congress; and thirdly, that, if not suspended, still the statute of Pennsylvania, in all its provisions applicable to this case, is in direct collision with the act of Congress, and therefore, is unconstitutional and void. The counsel for Pennsylvania maintain the negative of all those points.
Few questions which have ever come before this Court involve more delicate and important considerations, and few upon which the public at large may be presumed to feel a more profound and pervading interest. We have accordingly given them our most deliberate examination, and it has become my duty to state the result to which we have arrived, and the reasoning by which it is supported.
Before, however, we proceed to the points more immediately before us, it may be well, in order to clear the case of difficulty, to say that, in the exposition of this part of the Constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will indeed probably be found, when we look to the character of the Constitution itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact, that many of its provisions were matters of compromise of opposing interests and opinions, that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights with all the lights and aids of contemporary history, and to give to the words of each just such operation
Page 41 U. S. 611
and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.
There are two clauses in the Constitution upon the subject of fugitives, which stands in juxtaposition with each other and have been thought mutually to illustrate each other. They are both contained in the second section of the fourth Article, and are in the following words:
"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."
"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 last clause is that the true interpretation whereof is directly in judgment before us. Historically, it is well known that the object of this clause was to secure to the citizens of the slave-holding States the complete right and title of ownership in their slaves, as property, in every State in the Union into which they might escape from the State where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slave-holding States, and indeed was so vital to the preservation of their domestic interests and institutions that it cannot be doubted that it constituted a fundamental article without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.
By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations where slavery is recognized. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognized in Somerset's Case,
Page 41 U. S. 612
Lofft 1; S.C. 11 State Trials, by Harg. 340, S.C. 20 How. State Trials 79, which decided before the American revolution. It is manifest from this consideration that, if the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters -- a course which would have created the most bitter animosities and engendered perpetual strife between the different States. The clause was therefore of the last importance to the safety and security of the southern States, and could not have been surrendered by them, without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it -- a proof at once of its intrinsic and practical necessity.
How then are we to interpret the language of the clause? The true answer is in such a manner as, consistently with the words, shall fully and completely effectuate the whole objects of it. If, by one mode of interpretation, the right must become shadowy and unsubstantial, and without any remedial power adequate to the end, and, by another mode, it will attain its just end and secure its manifest purpose, it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends when another construction, equally accordant with the words and sense thereof, will enforce and protect them.
The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave which no state law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged from service or labor in consequence of any state law or regulation. Now certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said that any state law or state regulation which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave and the immediate command of his service and labor operates pro tanto a discharge of the slave therefrom. The question can never be how much the slave is discharged from, but whether he is
Page 41 U. S. 613
discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.
We have said that the clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any state law or legislation whatsoever, because there is no qualification or restriction of it to be found therein, and we have no right to insert any which is not expressed and cannot be fairly implied. Especially are we estopped from so doing when the clause puts the right to the service or labor upon the same ground, and to the same extent, in every other State as in the State from which the slave escaped and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also. The owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own State confer upon him, as property, and we all know that this right of seizure and recaption is universally acknowledged in all the slaveholding States. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject. Mr. Justice Blackstone (3 Bl. Com. 4) lays it down as unquestionable doctrine.
"Recaption or reprisal [says he] is another species of remedy by the mere act of the party injured. This happens when anyone hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child or servant, in which case the owner of the goods, and the husband, parent or master, may lawfully claim and retake them wherever he happens to find them, so it be not in a riotous manner or attended with a breach of the peace."
Upon this ground, we have not the slightest hesitation in holding that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave whenever he can do it without any breach of the peace or any illegal violence. In this sense and to this extent, this clause of the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national.
But the clause of the Constitution does not stop here, nor, indeed, consistently with its professed objects, could it do so. Many
Page 41 U. S. 614
cases must arise in which, if the remedy of the owner were confined to the mere right of seizure and recaption, he would be utterly without any adequate redress. He may not be able to lay his hands upon the slave. He may not be able to enforce his rights against persons who either secrete or conceal or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership, as to the courts in which he shall sue, and as to the actions which he may bring or the process be may use to compel the delivery of the slave. Nay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem, or no specific mode of repossessing the slave, leaving the owner, at best, not that right which the Constitution designed to secure, a specific delivery and repossession of the slave, but a mere remedy in damages, and that, perhaps, against persons utterly insolvent or worthless. The state legislation may be entirely silent on the whole subject, and its ordinary remedial process framed with different views and objects, and this may be innocently, as well as designedly, done, since every State is perfectly competent, and has the exclusive right, to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases which its own policy and its own institutions either prohibit or discountenance.
If, therefore, the clause of the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced, in cases where it did not execute itself, it is plain that it would have been, in a great variety of cases, a delusive and empty annunciation. If it did not contemplate any action, either through state or national legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right, it would be left to the mere comity of the States to act as they should please, and would depend for its security upon the changing course of public opinion, the mutations of public policy, and the general adaptations of remedies for purposes strictly according to the lex fori.
And this leads us to the consideration of the other part of the clause, which implies at once a guarantee and duty. It says, "but he [the slave] shall be delivered up on claim of the party to
Page 41 U. S. 615
whom such service or labor may be due." Now we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some further remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made! What is a claim? It is, in a just juridical sense, a demand of some matter, as of right, made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited but, at the same time, an equally expressive, definition was given by Lord Dyer, as cited in Stowel v. Zouch, 1 Plowd. 359, and it is equally applicable to the present case: that
"a claim is a challenge by a man of the propriety or ownership of a thing which he has not in possession, but which is wrongfully detained from him."
The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When and under what circumstances shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled?
These and many other questions will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution guaranties the right, and if it requires the delivery upon the claim of the owner (as cannot well be doubted), the natural inference certainly is that the National Government is clothed with the appropriate authority and functions to enforce it. The fundamental principle, applicable to all cases of this sort, would seem to be that, where the end is required, the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the National Constitution, and not in that of any State. It does not point out any state functionaries, or any state action, to carry its provisions into effect . The States cannot, therefore, be compelled to enforce them, and
Page 41 U. S. 616
it might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the National Government, nowhere delegated or entrusted to them by the Constitution. On the contrary, the natural, if not the necessary, conclusion is, that the National Government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Constitution. The remark of Mr. Madison, in the Federalist (No. 43), would seem in such cases to apply with peculiar force. "A right [says he] implies a remedy, and where else would the remedy be deposited than where it is deposited by the Constitution?" -- meaning, as the context shows, in the Government of the United States.
It is plain, then, that 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. Congress, then, may call that power into activity for the very purpose of giving effect to that right; and, if so, then it may prescribe the mode and extent in which it shall be applied, and how and under what circumstances the proceedings shall afford a complete protection and guarantee to the right.
Congress has taken this very view of the power and duty of the National Government. As early as the year 1791, the attention of Congress was drawn to it (as we shall hereafter more fully see) in consequence of some practical difficulties arising under the other clause respecting fugitives from justice escaping into other States. The result of their deliberations was the passage of the act of the 12th of February 1793, ch. 51, which, after having, in the first and second sections, provided by the case of fugitives from justice, by a demand to be made of the delivery, through the executive authority of the State where they are found,
Page 41 U. S. 617
proceeds, in the third section, to provide that, when a person held to labor or service in any of the United States, shall escape into any other of the States or territories, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city or town corporate, wherein such seizure or arrest shall be made; and, upon proof to the satisfaction of such judge or magistrate, either by oral evidence or affidavit, &c., that the person so seized or arrested, doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney which shall be sufficient warrant for removing the said fugitive from labor to the State or territory from which he or she fled. The fourth section provides a penalty against any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney in so seizing or arresting such fugitive from labor, or rescue such fugitive from the claimant, or his agent or attorney when so arrested, or who shall harbor or conceal such fugitive after notice that he is such; and it also saves to the person claiming such labor or service his right of action for or on account of such injuries.
In a general sense, this act may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice and fugitive slaves -- that is, it covers both the subjects in its enactments, not because it exhausts the remedies which may be applied by Congress to enforce the rights if the provisions of the act shall in practice be found not to attain the object of the Constitution; but because it points out fully all the modes of attaining those objects which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Constitution. If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject and, by necessary implication, prohibit it. For, if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot
Page 41 U. S. 618
be that the state legislatures have a right to interfere and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any further legislation to act upon the subject matter. Its silence as to what it does not do is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by this Court, in the case of Houston v. Moore, 5 Wheat. 1, 18 U. S. 21-22, where it was expressly held that, where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for state legislation to add to the provisions of Congress upon that subject, for that the will of Congress upon the whole subject is as clearly established by what it has not declared as by what it has expressed.
But it has been argued that the act of Congress is unconstitutional because it does not fall within the scope of any of the enumerated powers of legislation confided to that body, and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this -- that although rights are exclusively secured by, or duties are exclusively imposed upon, the National Government, yet, unless the power to enforce these rights or to execute these duties can be found among the express powers of legislation enumerated in the Constitution, they remain without any means of giving them effect by any act of Congress, and they must operate solely proprio vigore, however defective may be their operation -- nay! even although, in a practical sense, they may become a nullity from the want of a proper remedy to enforce them or to provide against their violation. If this be the true interpretation of the Constitution, it must in a great measure fail to attain many of its avowed and positive objects as a security of rights and a recognition of duties. Such a limited construction of the Constitution has never yet been adopted as correct either in theory or practice. No one has ever supposed that Congress could constitutionally, by its legislation, exercise powers or enact laws beyond the powers delegated to it by the Constitution. But it has on various occasions exercised powers which were necessary and proper as means to carry into effect rights expressly
Page 41 U. S. 619
given and duties expressly enjoined thereby. The end being required, it has been deemed a just and necessary implication that the means to accomplish it are given also, or, in other words, that the power flows as a necessary means to accomplish the end.
[snip]
Precisely. It was lawful at the STATE level. Nowhere was it mentioned at the national level in which slaves were described as property.
Thank you for an extremely long proof of Oakes’ position that it was “Freedom national,” slavery local.
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