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Mr. FLEMING moved that the convention do now adjourn; on which motion there was no quorum voting.
Mr. STEIRGERE hoped that, in such a state of things, the President would adjourn the convention.
After ineffectual motions of various kinds,
The convention resumed the second reading of the report of the committee to whom was referred the ninth article of the constitution.
The pending question being on the motion of Mr. PURVIANCE,
To amend the tenth section thereof by inserting after the word • limb,' in the sixth line the following words, viz:
“ Nor shall the trial by jury be denied by any judicial officer or tribu. nal of this commonwealth, to persons who may be claimed as fugitive s. from labor, and who shall assert their right to freedom.”
Mr. Scott resumed:
When the convention adjourned this morning, I was saying that, if the constitutionality of the act of congress of 1793 was, in the least degree, a matter of doubt, no injury could possibly result from the adoption of this amendment in the constitution of Pennsylvania. And the reason why no injury could result, was this :—that if the highest tribunal of our land, should hereafter decide that the act of 1793 is a constitutional act, then our amendment would simply and quietly fall to the ground, and would become entirely inoperative and dead. And here is the advantage that results from the acknowledgment that there is a supreme law in the land, paramount over all. Cases do often occur in which state legislation interferes and conflicts with the constitution of the United States. And what in such a case is to be done? The judicial tribunals satisfy them. selves with deciding and declaring that your legislation is inoperative. If, therefore, it should hereafter turn out upon the judgment of the highest tribunal-an event which has not yet come to pass—that the act of 1793 is, in all its parts, constitutional, and, consequently, that this provision adopted in the constitution of Pennsylvania would be in opposition to it, no harm, as I have said, could be done, because our provision would become at once inoperative ; and that would be all.
But, Mr. President, let us take the opposite view of the case. Sup. pose
that when this constitution comes to be passed upon by the supreme court of the United States, they should say that the act of congress of 1793 did trench upon the constitutional provision. Where should we be then? We should find ourselves with a provision in our own constitution, which would not stand in opposition to the constitution of the United Statas-a provision which would be consistent with the principles of freedom, and, ergo, the advocates of liberty, whereever those principles were known.
In the one alternative, the adoption of the amendment can do no injury; in the other, its adoption would be attended with the greatest possible benefits.
One word about the act of 1793. It was passed by congress within a very few years after the adoption of the constitution of the United States, and that circumstance is urged by those gentlemen who advocate the entire consistency of the act with the constitution, as a proof that it is in accordance with the spirit of that constitution. They say that the constitution of the United States having been itself only four or five years in existence, it was probably better understood, at that time, than it is at the present; and that, therefore, the legislation of that day must be considered as being in accordance with that constitution.
Every man who understands the history of this country knows, that, at certain periods, every thing in the United States has had a tendency to concentration, and to the establishment of a great central power; and he knows also, that there have been other periods in the history of the coun. try, when the tendency of every thing was towards carrying out the extreme doctrine of state rights; and I must here be permitted to say, that the year 1793 was a period when the tendency of every thing was to concentration. You had just come out of the old confederacy-which, as we all know, was but a rope of sand—and we had framed a constitution, the object of which was to cement the confederacy, and to form it into a strong national government. And the feeling of concentration existed in the minds of a number of the framers of the constitution, to an extent which has not since been known. At that time of day, there was a strong disposition manifested to extend the power of congress beyond the natural prerogative which had been bestowed upon that body by the constitution of the United States. This is not the doctrine of this day, and it ought not to be held to be so; still less ought any matter to be voted for in this body, by gentlemen who maintain the principle that the states have a claim to a separate existence, although subordinate to the general government. It is a very singular circumstance, and one which is worthy of consideration here, that although, in the year 1793, congress did
pass this act, yet, in the year 1801, they passed another act of an important character, and which, I think has not been referred to in the course of this debate.
In the year 1801, when the congress of the United States was legislating for the District of Columbia, over which they have absolute control -separate legislative power of a municipal character—they passed an act to which I will call the attention of this body, for the purpose of showing what, as early as the year 1801, the congress of the United States thought was the proper mode of carrying out the constitutional provision in rela
tion to fugitives from labor. "The professional men of this body will find the law in the third volume of Story's edition of the laws of the United States, page 2092 and 3. It is an act entitled "an act supplementary to an act concerning the District of Columbia.” The language of it is this :
" Sect. 0. That in all cases where the constitution or laws of the United States provide that criminals and fugitives from justice, or persons held to labor in any state, escaping into another state, shall be delivered up, the chief justice of the said district shall be, and he is hereby empowered and required, to cause to be apprehended and delivered up such criminal, fugitive from justice, or person fleeing from service, as the case may be, who shell be found within the District, in the same manner and under the same regulations as the executive authorities of the several states are required to do the same; and all executive and judicial officers are hereby required to obey all lawful precepts, or other process issued for that purpose, and to be aiding and assisting in such delivery." [Act of March 3, 1801.]
Now, (continued Mr. S.) I say that this is a very remarkable act of congress. In the year 1801, when congress was pointing out to the District of Columbia—their own little municipal spot the mode in which, in that district, a fugitive from labor should be arrested, they say it shall be done under the warrant of the chief justice of the district, in the same manner as is done, or ought to be done, in the states of the Union, by the chief executive officers in the case of fugitives from justice. From this act I draw two conclusions :
In the first place, I draw the conclusion, that it shows clearly that the persons who passed it, believed that the act of delivery ought to be an executive act, in the case not only of fugitives from justice, but also of fugitives from labor. And if that conclusion is not conceded, I draw, at all events, another; that is to say, that the congress of the United States entertained the opinion that, in the District of Columbia, the power of delivering up a fugitive from labor was a power which ought to be extended only to the highest judicial authorities in that district. It is to be borne in mind that, in that district as in the states of the Union, they have magistrates—that they have justices of the peace--that they have inferior judicial tribunals—that they have inferior judicial officers; and yet, in the year 1801, the act of congress resused 10 entrust the fate of a fugitive from labor to any other than the highest judicial authority to be found in ille District of Columbia. This is a commentary, strong and powerful, on the legislation of the year 1793. I do not know but what it may have been possible—and I ask my friends on the other side to think of this poini-I say I do noi know but what it may have been possible that the great political changes which took place throughout the land about the year 1801, may have infused a different spirit into the members of congress of that day. And if this suggestion be correct, it must commend itself to my friends on the other side, and ought to attract their votes in favor of the amendment of the gentleman from Builer. I submit it to them as a matter worthy of their consideration, that they may find, in the great political changes which characterised the year alluded to, a reason why the legislature of that day, in passing this act, declared that the freeduin of a person claimed as a fugi.
tive from labor, should not be entrusted to the keeping of any officer under the chief judicial officer of the District of Columbia.
· Look to the act of 1793. Examine its provisions. What are they? It is an extraordinary act-very extraordinary; and before I refer to it, allow me to refer my professional friends in this body to the opinion of Judge Tucker, of Virginia, and which, I believe, has not been quoted by any other gentleman in the course of the argument. It is to be found at page 369, in the appendix to the 1st volume of Tucker's Blackstone.
“ It may seem very extraordinary, that a people jealous of their liberty, and not insensible of the allurements of power, should have entrusted the federal government with such extensive authority as this article conveys : controlling not only the acts of their ordinary legislatures, but their very constitutions, also.”
Now, in the act of 1793, (continued Mr. S.) the congress of the United States have undertaken to say, that it shall be the duty of our magistrates -their positive and bounden doty—to entertain jurisdiction over the claim for a fugitive from labor—that they shall pass upon it—and that it shall be their duty, if satisfactory proof is given, to issue the certificate which is to remand that fugitive to slavery.
Let me call the attention of the convention to another matter. This is only one section of the act. The first section of the act undertakes to impose, by congressional legislation, a duty positively and absolutely upon the executive magistrates of ihe several commonwealths of this Union. The provision is as follows:
“That whenever the executive authority of any state in the Union, or of either of the territories northwest or south of the river Ohio, shall demand any person as a fugitive from justice, of the executive authority of any such state or territory to which such person shall have fled, and shall, moreover, produce the copy of an indictment found, or an affidavit made, before a magistrate of any state or territory as aforesaid, charging the person so demanded of having committed treason, felony, or other crime, certified as authentic by the governor or chief magistrate of the state or territory from whence the person so charged fled, it shall be the duty of the executive authority of the state or territory to which such person shall have fled, to cause him or her to be arrested and secured, and notice of the arrest to be given to the executive authority makiug such demand, or to the agent of such authority appointed to receive the fugitive, and to cause the sugitive to be delivered to such agent when he shall appear.”
It is thus to be observed (continued Mr. S.) that congress here undertakes, by legislation, to prescribe what shall be the duty of the governor of Pennsylvania. If, then, congress has the power to prescribe what shall be the duty of the governor, I ask you whether congress does not possess the power also, to inflict punishment upon the governor if he does not perform the duty thus prescribed for him. Does not the one result as a necessary consequence of the other? Will any professional man in this body answer me the question: If the constitution of the United States gives to congress the power to pass a law prescribing a duty to the governor of a sovereign state, does it not follow that the same constitution
puts it in the power of congress to inflict a punishment, in case the governor does not perform that duty ? Where is the difference? Can it be that a legislative body can have the power of prescribing a duty, and not the power to enforce its performance. Then, sir, the congress of the United States has positively undertaken, in this act of 1793, to prescribe the duty of your executive authority.
Let us suppose a case.
Suppose, that in pursuance of the powers which that body is presumed by the arguments of genilemen on the other side of the question to possess, congress should say, that is the executive of the commonwealth of Pennsylvania did not do his duty in the manner prescribed by their legislation, he should be fined, and should be imprisoned at hard labor for the term of five years. Is this within the constitutional power of that body ? I put it to the professional men of this convention, as a position not to be controverted, that where ever the right to prescribe a duty exists, the right to punish for a refusal or neglect to perform that duty, follows as an actual consequence. I deny the separation of the two powers. I defy the intelligence or ingenuity of men to point out the separation between the iwo, or to show that the one is not the necessary consequence of the other. I put this as a position that is not capable of being controverted, that to the same legislature which is given the power to prescribe a duty, belongs also the power to enforce its performance by penal enactment. Then, I say, that in the act of 1793, unless gentlemen are willing to go with me to the fullest extent to which I have carried the matter out, the congress of the United States have assumed a power not conferred upon them by the constitution.
While upon this part of the subject, I have one remark to make, which is called forth by the observations of gentlemen who have preceded me.
We are told thai it is not becoming in us to repudiaie the decisions of able and learned men scattered over different sections of the Union. It kas been demonstrated that the opinions given on this subject have difdered much from each other. But even if it were not so, I do not sub. scribe to the position here assumed. I hold that the men who have been selected by the commonwealth of Pennsylvania, and sent here to frame her laws--to create and erect the foundations of her society-are to be estimated theoretically at least, whatever they may be in practice, just as competent to form a sound opinion of the constitution of the United States, as those gentlemen whose duty it is, from the judicial benches, to expound that constitution.
No man has any business here who is not capable of reflecting upon the subject, and of forming an opinion worthy of himself and of the county which has reposed this great confidence in him. The opinions, therefore, which I have here avanced, are expressed upon my own responsibility, and as one sent here by the people to build up the founda. tions of their commonwealth.
Well then, sir, we come to the question :--Has the state of Pennsyl. vania regarded this act of congress as being so far the supreme law of the land, that her legislature has not been willing to legislate against it? The act of 1793 says, that every magistrate of a city, county, or district, to