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ITS PROVISIONS AFFECT THE QUES

force; and secondly, that the ordinance has the effect to abolish slavery for every purpose within the territory northwest of the Ohio, so that a slave coming there from the Spanish possessions is, by the mere act of treading upon the soil, redeemed and emancipated.*

POINT IV. The Law OF 1793, SO FAR AS

TIONS NOW BEFORE THIS Court, is UNCONSTITUTIONAL AND Vom.

The law is based upon the second section of Article IV. of the Constitution. “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.”

If we admit, for the purpose of the argument, that this section furnishes ground for the exercise of legislation, by the Congress of the United States, to carry the section into execution, we may, nevertheless, confidently assert, that such legislation must be confined to the very object and purpose of the section, and cannot be extended further. If any state should pass any law, or establish any regulation adapted to work a discharge of persons escaping into its jurisdiction from lawful obligation of labor or service, existing in the state from whence they fled, or to prevent their delivery to proper claimants, Congress might abrogate such law or regulation. But such an act of abrogation would be unnecessary, because the offensive law or regulation would be unconstitutional, and ipso facto void. Here the constitutional power reposed in Congress to legislate on this subject must end; for the object of the second article is attained when such action or legislation by the several states, is effectually prohibited or defeated. We admit that the section provides that the fugitive "shall be delivered up, on claim of the party to whom such service or labor may be due.” But these are merely words of explanation, giving precision, force and effect to the inhibition of the passage of laws or adoption of regulations by the states for the discharge of fugitives. Any law or regulation of a state, which may work the discharge of the fu

* Story on the Constitution, Vol. 8, 188, 189. Green vs. Biddle, 8, Wheaton's Reports, 87, 88. Henry and others vs. Decker and Hopkins, June 1, 1818. Walker's Mississippi Reports, 36. Wheeler on Slavery, 840. Menoud vs. Aspacia, 5, Wheaton, 515.

If a

gitive, shall be so absolutely void, that not only such consequence shall not take effect, but the right of recaption shall not be at all affected by such law or regulation. The section would have full, complete and satisfactory effect through judicial action. person in any court of any state claimed that another who had escaped into its jurisdiction was lawfully held in the state from whence he fled, to labor for the claimant, and if the defendant being either the person against whom the claim was made, or any other person, or even the state within whose jurisdiction the fugitive was found, should interpose by plea any law or regulation affecting to discharge him from such obligation imposed by the law of the other state, that plea should be overruled. The second section would necessarily receive this complete effect by the adjudication of the courts of law of the United States, and of every state, without any interposition by Congress whatever. No law of Congress could give to the section any greater force, effect, or power ; because all laws must be tried by the Constitution before the Judiciary. It results from this that the court in which such a claim should be asserted, would be confined to try the questions first, whether the alleged fugitive from labor was held to labor to the claimant in another state by the laws of that state, and secondly, whether he had escaped from that state into the state where he was found. And the court would have a right to decide upon the validity of the laws of the other state, by which the fugitive was alleged to be held to labor, and be obliged to decide upon them as courts now do in all cases of conflict of laws. The court would be restricted in this judicial proceeding, only in two respects; first, they must not allow a plea of any law or regulation of the state where the fugitive was found, to work his discharge from an obligation created by the laws of the state from which he fled; and secondly, the court might perhaps be obliged, by the last clause of the section, to pronounce judgment, that the fugitive should be delivered to the party who had established the claim to the labor or service of the fugitive. If it be assumed that the courts of the state, or of the United States, might disregard the constitutional inhibition : we reply, first, that Congress cannot presume, nor can this court presume, that any court would be guilty of a dereliction; and secondly, that the remedy could always be applied in a revision of the proceedings of inferior courts by the Supreme Court of the United States, whose power on questions of constitutional law is higher than that of the legislature.

I am not unaware that the law of 1793 grew out of a discussion in the state of Virginia, which was thought to show that the constitutional provision was not sufficiently explicit, and direct, to execute itself proprio vigore. Nor do I deny that the Congress of 1793 believed the enactment of the law indispensable to give effect to that provision. Nor do I deny that in many cases in the courts of the states, and in one memorable case, at least in this court,* the law has been sustained. I am not ignorant that these cases are thought sufficient to preclude any discussion of the point now presented. I know that this court, like all other courts, will give effect, and ought to give just effect to the principle of stare decisis ; and I am not ignorant that until very lately, there has been a measured acquiescence to the act of Congress, and the judicial decisions by which it has been sustained. But the principle of stare decisis has its legitimate bounds, even in the courts of common law; and it must be abandoned in every case where it is found, upon full and deliberate consideration, under the guidance of practical experience, or upon a further development of essential facts, that the decision insisted unon, however timehonored it may be, is erroneous. To deny this would be to assert that the past was more enlightened than the future, and that conjectural opinions are better than wisdom acquired by experience. Nor is implicit veneration due to what is called contemporaneous construction. The framers of the Constitution are justly deemed to have contemplated the growth and improvement of society forever, and to have adopted such general provisions as would be found practicable and expedient in distant ages. Constructions adapted to those ages must prevail, although they conflict with contemporaneous opinions and interests.

All contemporaneous construction must take its form or hues more or less from existing interests. The Constitution was made by a convention who painfully felt that slavery existed, but who also joyfully foresaw that it would before long cease to be. The law of 1793 was passed because, when the Governor of Pennsylvania, in 1791, demanded from the Governor of Virginia three fugitives, not from slavery, but from justice, the Governor of Virginia answered that he was not authorized to comply by the mere authority of the Constitution of the United States, without more immediate and direct power, for which he appealed, through President Washington, to Congress. Thus it happened that Congress did, in fact, by the law of 1793, exercise legislative power concerning the recaption of fugitive slaves before any case had arisen in any state, which showed that the Constitution of the United States was ineffectual without legislation. Occasion was taken of an embarrassment concerning the surrender of fugitives from justice to fortify slavery, by giving it what then, at least, was unnecessary aid for the recapture of fugitives from labor. The plea then made for this bold measure was one, not of necessity, at least not of necessity proved, but of a mère analogy between the constitutional provision relating to the surrender of fugitives from justice, and the provision concerning fugitives from labor. It seems to us that the analogy which was the only foundation of the enactment, does not exist. In regard to fugitives from justice, the Constitution is direct and affirmative :

* Prigg vs. Pennsylvania, 16 Peters.

" 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 wbich he fled, be delivered up to be removed to the state having jurisdiction of the crime."

The principle of extradition of fugitives from justice is one so essential to the peace and harmony of contiguous states, that some writers upon the law of nations have insisted that it was entitled to a place in that code. While this opinion has not been generally sustained, it has been found expedient, by modern nations, and especially by affiliated states, to establish the principle by treaty or compact. Such has long been the case in the confederated cantons of Switzerland. The convention, while framing a constitution, designed to preserve harmony between the several states, and promote their welfare, naturally, necessarily, wisely, and, we believe, unanimously incorporated a provision for that purpose in the American Constitution. The provision adopted is direct, positive, and absolute. It describes with precision the person to be surrendered, “ as one who being charged, in any state, with treason, felony, or other crime, shall flee from justice, and be found in another state.” What constitutes, treason, felony, or crime, is assumed to be settled, and universally understood. The word charged has legal import, and implies a judicial or magisterial charge. The culprit shall be demanded by the executive authority of the state, and by no one else; and it is fairly implied that

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he shall be delivered up by the executive authority of the state where he is found, and by none else; since, if any other authority were obliged to execute the delivery, there would inevitably be clashing of the police of the several states. No difficulty was found in the Virginia case, except to remove the doubt of the governor of that commonwealth concerning his power to execute the surrender-a doubt quite unreasonable, and to be deeply deplored for the consequences which it has produced. Those who contend for an analogy between the two provisions find their cause so weak, as to be obliged to dwell upon the merely fortuitous circumstances that the two clauses concerning fugitives are found in juxta-position. But surely this argument is of no value, if the provisions exhibit a marked contrast. The clause concerning fugitives from labor, instead of being expressed in a direct and positive form, and of imposing an obligation and a duty upon the executive authorities of the respective states, is merely negative, imposes no such obligation or duty, and is content with merely denying to the legislative authorities of the several states power to hinder or obstruct citizens of other states in the assertion of lawful claims to labor or service. “No person held to service or labor, in one state, under the laws thereof, 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,” &c. This is a mere announcement of a principle which shall be paramonnt, in courts of justice, to any local laws or regulations.

Nor is the origin of the principle of this latter clause, in any degree the same, with the source to which we have traced the principle of extradition of fugitives from justice. The latter is found in the comity of nations, and in the necessity of maintaining the cause of justice, of order, of law, and of government. The former has no such foundation. If by the words “persons held to service or labor" are meant, as some suppose, persons held by contract, we shall look in vain throughout the history of every civilized state, for a principle so much at war with human liberty, as the surrender of fugitive debtors. Some modern states allow to citizens, or subjects of other states, access to courts of justice, to enforce obli. gations of debt by the remedies given in similar cases to their own citizens. None ever surrendered -and none ever will surrender, a fugitive debtor, to be conveyed to the state where the obligation was incurred.

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