History of the Origin, Formation, and Adoption of the Constitution of the United States Volume II Part 22

The plan of the committee of detail contemplated a supreme tribunal with original jurisdiction over a few of the cases within the judicial power, and appellate jurisdiction over all the other cases enumerated.

Inquiry was made in the Convention, whether this appellate jurisdiction was intended to embrace fact as well as law, and to extend to cases of common law as well as to those of equity and admiralty jurisdiction. The answer was given, that such was the intention of the committee, and the jurisdiction of the federal court of appeals, under the Confederation, was referred to as having been so construed. The words "both as to law and fact" were thereupon introduced into the description of the appellate power, by unanimous consent.[353] Various explanations were subsequently given, when the Const.i.tution came before the people, of the force and meaning of these words. The most probable and the most acute of these explanations was that made by Hamilton in the Federalist,[354] which limited the effect of the words, in reference to common law cases, to so much cognizance of the facts involved in a record as is implied in the application of the law to them by the appellate tribunal. But the truth was, the words were of very comprehensive import. While they were used in order to save to the Supreme Court power to revise the facts in equity and admiralty proceedings, they made no distinction, and imposed upon Congress no duty to make a distinction, between cases in equity and admiralty, and cases at common law; and although it might be true, that in some States the facts in all cases were tried by a jury, and that in some cases so tried there ought to be a power to revise the facts, yet it was not conceded that such a power ought to exist over the verdicts of juries in cases of common law jurisdiction. This explanation will serve to show the double purpose of the amendment made in 1791. The people of many of the States required an express guaranty that trial by jury should be preserved in suits at common law, and that the facts once tried by a jury should not be re-examined otherwise than according to the rules of the common law, which have established certain well-defined limits to the power of an appellate tribunal concerning the facts appearing to have been found by a jury.[355]

There was still another omission in the report of the committee, of great magnitude. They had included in the judicial power cases arising under the laws of the United States, but they had not embraced cases arising under the Const.i.tution and under treaties. At the same time, the Const.i.tution was to embrace not only the powers of the general government, but also special restrictions upon the powers of the States; and not only the Const.i.tution itself, but the laws made in pursuance of its provisions, and all treaties made under the authority of the United States, were to be the supreme law of the land. This supremacy could only be enforced by some prescribed action of some department of the general government. The idea of a legislative arrest, or _veto_, of State laws supposed to be in conflict with some provision of the national Const.i.tution, or with a treaty or a law of the United States, had been abandoned. The conformity, moreover, of the laws of Congress to the provisions of the Const.i.tution, could only be determined by the judicial power, when drawn into question in a judicial proceeding. The just and successful operation of the Const.i.tution, therefore, required that, by some comprehensive provision, all judicial cases[356] arising under the Const.i.tution, laws, or treaties of the United States--whether the question should grow out of the action of a State legislature, or the action of any department of the general government--should be brought within the cognizance of the national judiciary. This provision was added by the Convention. It completed the due proportions and efficacy of this branch of the judicial power.

Trial by jury of all criminal offences (except in cases of impeachment) had been provided for by the committee of detail, and such trial was to be had in the State where the offence had been committed. The Convention, in order to secure the same right of a jury trial in cases where the offence had been committed out of any State, provided that the trial should be at such place or places as the Congress might by law have directed.[357]

These additions, with one other which included within the judicial power all cases to which the United States might be party; the transfer of the trial of impeachments to the Senate; and the transfer to the judiciary of controversies between the States respecting jurisdiction or territory, and controversies respecting land t.i.tles claimed under the grants of different States,--were the princ.i.p.al changes and improvements made in the plan of the committee.

The details of the arrangement will perhaps fail to interest the general reader. Yet I cannot but think that to understand the purpose and operation of this department of the national government would be a very desirable acquisition for any of my readers not already possessed of it; and having completed the description of the mode in which the judicial power was constructed, I shall conclude this part of the subject with a brief statement of its const.i.tutional functions.

One of the leading purposes for which this branch of the government was established, was to enable the Const.i.tution to operate upon individuals, by securing their obedience to its commands, and by protecting them in the enjoyment of the rights and privileges which it confers. The government of the United States was eminently intended, among other purposes, to secure certain personal rights, and to exact certain personal duties. The Const.i.tution confers on the general government a few special powers, but it confers them in order that the general government may accomplish for the people of each State the advantages and blessings for which the State governments are presumed to be, and have in fact proved to be, inadequate. It lays upon the governments and people of the States certain restrictions, and it lays them for the protection of the people against an exercise of State power deemed injurious to the general welfare. The government of the United States, therefore, is not only a government which seeks to protect the welfare and happiness of the people who live under it, but it is so constructed as to make its citizens directly and individually its subjects, exacting of them certain duties, and securing to them certain rights. It comes into this relation by reason of its supreme legislative power over certain interests, and the supreme authority of its restrictions upon the powers of the States; and it is enabled to make this relation effectual through its judicial department, which can take cognizance of every duty that the Const.i.tution exacts and of every right that it confers, whenever they have a.s.sumed a shape in which judicial power can act upon them. Let us take, as ill.u.s.trations of this function of the national judiciary, a single instance of the obedience required by the Const.i.tution, and also one of a right which it protects. The Const.i.tution empowers Congress to lay and collect duties; which, when they are laid and incurred, become a debt due from the individual owner of the property on which they are a.s.sessed to the general government. Payment, in disputed cases, might have been left to be enforced by executive power; but the Const.i.tution has interposed the judicial department, as the more peaceful agent, which can at once adjudicate between the government and the citizen, and compel the payment of what is found due. Again, the Const.i.tution provides that no State shall pa.s.s any law impairing the obligation of contracts. An individual supposing himself to be aggrieved by such a law might have been left to obtain such redress as the judicial or legislative authorities of the State might be disposed to give him; but the Const.i.tution enables him finally to resort to the national judiciary, which has power to relieve him against the operation of the law upon his personal rights, while the law itself may be left upon the statute-book of the State.

But while the judicial department of the general government was thus designed to enforce the duties and protect the rights of individuals, it is obvious that, in a system of government where such rights and duties are to be ascertained by the provisions of a fundamental law framed for the express purpose of defining the powers of the general government and of each of its departments, and establis.h.i.+ng certain limits to the powers of the States, the mere act of determining the existence of such rights or duties may involve an adjudication upon the question, whether acts of legislative or executive power are in conformity with the requirements of the fundamental law. On the one hand, the judicial department is to see that the legislative authority of the Union does not exact of individuals duties which are not within its prescribed powers, and that no department of the general government encroaches upon the rights of any other, or upon the rights of the States; and, on the other hand, it has to see that the legislative authority of the States does not encroach upon the powers conferred upon the general government, or violate the rights which the Const.i.tution secures to the citizen. All this may be, and constantly is, involved in judicial inquiries into the rights, powers, functions, and duties of private citizens or public officers; and therefore, in order that the judicial power should be able effectually to discharge its functions, it must possess authority, for the purposes of the adjudication, to declare even an act of legislation to be void, which conflicts with any provision of the Const.i.tution.

There were great differences of opinion in the Convention upon the expediency of giving to the judges, as expositors of the Const.i.tution, power to declare a law to be void;[358] and undoubtedly such a power, if introduced into some governments, would be legislative in its nature, whether the persons who were to exercise it should be called judges, or be clothed with the functions of a council of revision. But under a limited and written const.i.tution, such a power, when given in the form and exercised in the mode provided for in the Const.i.tution of the United States, is strictly judicial. This is apparent from the question that is to be determined. It arises in a judicial controversy respecting some right a.s.serted by or against an individual; and the matter to be determined is whether an act of legislation, supposed to govern the case as law, is itself in conformity to the supreme law of the Const.i.tution. In a government const.i.tuted like ours, this question must be determined by some one of its departments. If it be left with the executive to decide finally what laws shall be executed, because they are consistent with the Const.i.tution, and what laws shall be suspended, because they violate the Const.i.tution, this practical inconvenience may arise, namely, that the decision is made upon the abstract question, before a case to be governed by the law has arisen.

If the legislature were empowered to determine, finally, that the laws which they enact are const.i.tutional, the same practical difficulty would exist; and the individual, whose rights or interests may be affected by a law, when put into operation, would have no opportunity to be heard upon what in our form of government is a purely juridical question, on which every citizen should be heard, if he desires it, before the law is enforced in his case. On the other hand, if the final and authoritative determination is postponed until the question arises in the course of a judicial controversy respecting some right or duty or power of an individual who is to be affected by the law, or who acts under it, the question itself is propounded not in the abstract, but in the concrete; not in reference to the bearing of the law upon all possible cases, but to its bearing upon the facts of a single case. In this aspect, the question is of necessity strictly judicial. To withhold from the citizen a right to be heard upon the question which in our jurisprudence is called the const.i.tutionality of a law, when that law is supposed to govern his rights or prescribe his duties, would be as unjust as it would be to deprive him of the right to be heard upon the construction of the law, or upon any other legal question that arises in the cause. The citizen lives under the protection, and is subject to the requirements, of a written fundamental law. No department of the national, or of any State government, can lawfully act otherwise than according to the powers conferred or the restrictions imposed by that instrument. If the citizen believe himself to be aggrieved by some action of either government which he supposes to be in violation of the Const.i.tution, and his complaint admit of judicial investigation, he must be heard upon that question, and it must be adjudicated, or there can be no administration of the laws worthy of the name of justice.

It is interesting, therefore, to observe how this function of the judicial power gives to the operation of the government a comparatively high degree of simplicity, exactness, and directness, notwithstanding the refined and complex character of the system which its framers were obliged to establish. To judge of the merits of that system, in this particular, it is necessary to recur again to those alternative measures, to which I have frequently referred, and which lay directly in their path. One of these measures was that of a council of revision, to be charged with the duty of arresting improper laws. Besides the objection which has been already alluded to,--that the question of the conformity of a law to the Const.i.tution would have thus been finally pa.s.sed upon in the abstract,--such an inst.i.tution, although theoretically confined to this inquiry, would have become practically a third legislative chamber; for it would inevitably have happened that considerations of expediency would also have found their way into the deliberations of a numerous body appointed to exercise a revisory power over all acts of legislation. There is no mode in which the question of const.i.tutional power to enact a law can be determined, without the influence of considerations of policy or expediency, so effectually, as by confining the final determination to the special operation of the law upon the facts of an individual case. When the tribunal that is to decide this question is, by the very form in which it is required to act, limited to the bearing of the law upon some right or duty of an individual placed in judgment by a record, it is at once relieved of the responsibility, and in a great degree freed from the temptation, of considering the policy of the legislation. If, therefore, it be conceded--as every one will concede--that, whatever public body is specially inst.i.tuted for the purpose of submitting the acts of the legislature to the test of the Const.i.tution, it should neither possess the power, nor be exposed to the danger, of invading the legislative province, by acting upon motives of expediency, it must be allowed that the framers of the Const.i.tution did wisely in rejecting the artificial, c.u.mbrous, and hazardous project of a council of revision. The plan of such a council was, it is true, much favored, and indeed insisted upon, by some of the wisest men in the Convention.

But it was urged at a time when the negative that was to be given to the President had not been settled, and when he had not been made sufficiently independent of the legislature to insure his unfettered employment of the negative that might be given to him. The purpose of the proposed council of revision was to strengthen his hands, by uniting the judges with him in the exercise of the "veto." This would have given to the judges a control both over the question of const.i.tutional power and the question of legislative policy. As to the latter, it became unnecessary, as well as inexpedient, to unite the judges with the President, after he had been clothed with a suitable negative, and after his election had been taken from the legislature; and as to the former question, the final arrangement of the judicial power made it equally unnecessary to form the judges into a council of revision, since, if the President should fail to arrest an unconst.i.tutional law, when presented for his approval, it could be tested in the ordinary course of judicial proceedings after it had gone into operation.

But the conformity of laws of Congress to the Const.i.tution was not all that was to be secured. Some prudent and effectual means were to be devised, by which the acts of the State governments could be subjected to the same test. The project of submitting the laws of the States to some department of the general government, while they were in the process of being enacted, or before they could have the form of law, was full of inconvenience and hazard. It could not have been attempted without an injury to State pride, that would have aroused an inextinguishable opposition to the national authority, even if the plan could once have been a.s.sented to. Yet there was no other alternative, unless the judicial power of the general government should be so constructed as to enable it to take the same cognizance of a const.i.tutional question, when arising upon the law of a State, that it was to take of such a question when arising upon an act of Congress. The same necessity would exist in the one case, as in the other, for a power within the general government to give practical effect to that supremacy which the Const.i.tution was to claim for itself, for treaties, and for the laws pa.s.sed in pursuance of its provisions. All the restrictions which the Const.i.tution was to lay upon the powers of the States would be nugatory, if the States themselves were to be the final judges of their meaning and operation.

This transcendent power of interpretation and application, so logically necessary, and yet so certain to wound and irritate, if exercised by direct interference, could be wielded, without injurious results, through the agency of judicial forms, by a judicial investigation into personal rights, when affected by the action of a State government, just as it could be in reference to the acts of any department of the national government that could be made the subject of proceedings in a court of justice.

The relation of the judicial power to the execution of treaties rests upon the same grounds of paramount necessity. It is not merely for the sake of uniformity of interpretation, that the national judiciary is authorized to decide finally all cases arising under treaties, although uniformity of interpretation is essential to the preservation of the public faith; but it is in order that the treaty shall be executed, by being placed beyond the hazards both of wrong construction and of interested opposition. The memorable instance of the Treaty of Peace, the absolute failure of which in point of execution, before the adoption of the Const.i.tution, has been described in the first volume of this work, presents the great ill.u.s.tration, in our const.i.tutional history, of the only mode in which the supremacy of treaty stipulations as law can be maintained in our system of government. "The United States in Congress a.s.sembled," under the Confederation, had the same exclusive authority to make treaties that is now possessed by the President and the Senate under the Const.i.tution, and a treaty was in theory as obligatory then, upon the separate States and their inhabitants, as it is now. But it has been found to be an axiom of universal application in the art of government, that a supremacy which is merely theoretical is no real supremacy. If a stipulation made by the proper authority with a foreign government is to have the force of law, requiring the obedience of individuals and of all public authorities, its execution must be committed to a judiciary acting upon private rights without the hinderance or influence of adverse legislation.

There is another branch of the judicial power which ill.u.s.trates in a striking manner the object embraced in the preamble of the Const.i.tution, where the people of the United States declare it to be their purpose "to establish justice." This is found in the provision for a special jurisdiction over the rights of persons bearing a certain character. Like almost everything else in the Const.i.tution, this feature of the judicial power sprang from a necessity taught by previous and severe experience. Reasoning from the mere nature of such a government as that of the United States, it might seem that the judicatures of the separate States would be sufficient for the administration of justice in all cases in which private rights alone are concerned, and by which no power or interest of the general government, and no provision of the general Const.i.tution, is likely to be affected. But we find in the judicial power of the United States a particular jurisdiction given on account of the mere civil characters of the parties to a controversy; and its existence there is to be accounted for upon other than speculative reasons. From the Declaration of Independence to the day of the ratification of the Const.i.tution, the judicial tribunals of the States had been unable to administer justice to foreigners, to citizens of other States, to foreign governments and their representatives, and to the governments of their sister States, so as to command the confidence and satisfy the reasonable expectations of an enlightened judgment. Hence the necessity for opening the national courts to these various cla.s.ses of parties, whose different positions may now be briefly considered.

In a country of confederated States, each possessing a full power of legislation, it could not but happen--as it did constantly happen in this Union before the adoption of the Const.i.tution--that the determination of controversies between citizens of the State where the adjudication was to be had, and citizens of another State, would be exposed to influences unfavorable to the ends of justice. In truth, one of the parties in such a controversy was virtually an alien, in the tribunal which he was obliged to enter; for although the Articles of Confederation undertook to secure to the free inhabitants of each State all the privileges and immunities of free citizens in the several States, yet it is obvious that the efficacy of such a provision must depend almost wholly upon the spirit of the tribunals, and upon their capacity to give effect to such a declaration of rights, against a course of State policy or the positive enactments of a State code. The chief difficulty of the condition of affairs existing before the Const.i.tution lay not so much in the hazards of a violation of principle through local prejudice, or the superior force of local policy or legislation,--although these influences were always powerful,--as in the fact that, when these influences were likely to be most active, or were most feared, there was no tribunal to which resort could be had, and which was known to be beyond their operation and their reach. The articles of compact between the States had intended to remove from the citizens of the different States the disabilities of practical alienage under which they would have stood in the tribunals of each other. But with that mere declaration those articles stopped. If the litigant saw that the local law was likely to be administered to him as if he were a foreigner, or feared that the scales of justice would not be held with an impartial hand, he could go nowhere else for a decision. This was a great evil; for much of the value of every judicature depends upon the confidence it inspires.

There were still other and perhaps stronger reasons for creating an independent jurisdiction, to be resorted to by foreigners, in controversies with citizens of the States. No clause in the Const.i.tution was to make them equal in rights with citizens, and for the very reason of their alienage, therefore, it was necessary to give them access to tribunals organized under the authority of the general government, which would be responsible to foreign powers for the treatment that their subjects might receive in the United States.

Amba.s.sadors, too, and other foreign ministers, would not only be aliens, but would possess the character of representatives of their sovereigns; and consuls would be the public agents of their governments, although not bearing the diplomatic character. These functionaries were therefore permitted to resort to the judicial power of the United States; and for the purpose of more effectually protecting the national interests that might be involved in their personal or official relations, original jurisdiction was given to the Supreme Court in all cases affecting them.

In addition to these, there were other controversies, which, as we have seen, were included within the judicial power of the United States, on account of the character of the parties; namely, those to which the United States might be a party; those to which a State of the Union might be a party, where the opposite party was another State of the Union, or a citizen of another State of the Union, or a foreign state or its citizens or subjects; and those between citizens of a State of the Union, and foreign states, citizens, or subjects.

Finally, controversies between citizens of the same State claiming lands under grants of different States were placed under the same jurisdiction for similar reasons;--because the State tribunals could not be expected to afford that degree of impartiality which the circ.u.mstances of these several cases required.

There remains only one other branch of the jurisdiction conferred by the Const.i.tution on the tribunals of the United States which it is necessary to notice; namely, the admiralty and maritime jurisdiction.

With respect to the criminal jurisdiction in admiralty, in cases of piracies and felonies committed on the high seas, and the prize jurisdiction, the Articles of Confederation had given to the Congress the exclusive power of appointing courts for the trial of the former, and for hearing and finally determining appeals in all cases of capture. Such appeals were taken from the State courts of admiralty,--tribunals which also possessed and exercised a civil jurisdiction corresponding to that of the admiralty in England, but in practice somewhat more extensive. When the Const.i.tution was framed, it was perceived to be expedient, on account of the relation of maritime commerce to the intercourse of the people of the United States with foreign nations, or to the intercourse of the people of different States with each other, to give the whole civil as well as criminal jurisdiction in admiralty, and the entire prize jurisdiction, original as well as appellate, to the government of the Union. This was effected by the comprehensive provision, which gives the judicial power cognizance of "all cases of admiralty and maritime jurisdiction"; expressions which have often been, and are still likely to be, the subject of much forensic controversy with respect to the particular transactions, of a civil nature, intended to be embraced in the jurisdiction, but in reference to which there is nothing in the known proceedings of the Convention, other than what is to be inferred from the language selected, that affords any special evidence of the intention of the framers of the Const.i.tution.

FOOTNOTES:

[352] Elliot, V. 550.

[353] Elliot, V. 483.

[354] No. 81.

[355] See the seventh Amendment.

[356] By "cases arising under the Const.i.tution," &c. the framers of that instrument did not mean all cases in which any department of the government might have occasion to act under provisions of the Const.i.tution, but all cases _of a judicial nature_; that is, cases which, having a.s.sumed the form of judicial proceedings between party and party, involve the construction or operation of the Const.i.tution of the United States. Elliot, V. 483.

[357] Elliot, V. 484. Const.i.tution, Art. III. -- 2, clause 3.

[358] Elliot, V. 429.

CHAPTER XV.

REPORT OF THE COMMITTEE OF DETAIL, CONTINUED.--EFFECT OF RECORDS.--INTER-STATE PRIVILEGES.--FUGITIVES FROM JUSTICE AND FROM SERVICE.

We now come to a cla.s.s of provisions designed to place the people of the separate States in more intimate relations with each other, by removing, in some degree, the consequences that would otherwise flow from their distinct and independent jurisdictions. This was to be done by causing the rights and benefits resulting from the laws of each State to be, for some purposes, respected in every other State. In other words, by the establishment and effect of certain exceptions, the general rule which absolves an independent government from any obligation to regard the law, the authority, or the policy of another government was, for some purposes, to be obviated between the States of the American Union.

To some extent, this had been attempted by the Articles of Confederation, by providing,--first, that the free inhabitants of each of the States (paupers, vagabonds, and fugitives from justice excepted) should be ent.i.tled to all privileges and immunities of free citizens in the several States; and that the people of each State should have free ingress and regress to and from any other State, and the same privileges of trade and commerce as its inhabitants;--secondly, that fugitives from justice charged with certain enumerated crimes, and escaping from one State into another, should be given up, on demand of the executive of the State from which they had escaped;--and thirdly, that full faith and credit should be given in each State to the records, acts, and judicial proceedings of the courts and magistrates of every other State.

The Confederation, however, was a "firm league of friends.h.i.+p with each other," entered into by separate States, and the object of the provisions above cited was "the better to secure and perpetuate mutual friends.h.i.+p and intercourse among the people" of those States. One of the purposes of the Const.i.tution, on the other hand, was "to form a more perfect Union"; and we are therefore to expect to find its framers enlarging and increasing the scope of these provisions, and giving to them greater precision and vigor. We shall see, also, that they made a very important addition to their number.

The first thing that was done was to make the language of the Confederation respecting the privileges of general citizens.h.i.+p somewhat more precise. The Articles of Confederation had made "the free _inhabitants_ of each State," with certain exceptions, ent.i.tled to the privileges and immunities of "free _citizens_ in the several States."[359] It is probable that these two expressions were intended to be used in the same sense, and that by "free inhabitants" of a State was meant its "free citizens." The framers of the Const.i.tution subst.i.tuted the latter expression for the former, and thus designated more accurately the persons who are to enjoy the privileges and immunities of free citizens in other States besides their own.

In the next place, while the Articles of Confederation declared that full faith should be given in each State to the acts, records, and judicial proceedings of every other State, they neither prescribed the mode in which the proof was to be made, nor the effect when it had been made. The committee of detail, in preparing the first draft of the Const.i.tution, merely adopted the naked declaration of the articles. The Convention added to it the further provision, which enabled Congress to prescribe by general laws the manner in which such acts, records, and proceedings shall be proved, and the effect to be given to them when proved.[360]

With respect to fugitives from justice, the Articles of Confederation had specified persons "charged with treason, felony, or other high misdemeanor in any State," as those who were to be given up by the States to each other. For the purpose of avoiding the ambiguity of this language, the provision was made to embrace all other crimes, as well as treason and felony.[361]

Besides correcting and enlarging these provisions, the framers of the Const.i.tution introduced into the system of the Union a special feature, which, in the relations _of the States to each other_, was then entirely novel, although not without precedent. I refer, of course, to the clause requiring the extradition of "fugitives from service," who have escaped from one State into another.

In describing the compromises of the Const.i.tution relating to slavery, I have not placed this provision among them, because it was not a part of the arrangement by which certain powers were conceded to the Union by one cla.s.s of States, in consideration of certain concessions made by another cla.s.s. It is a provision standing by itself, in respect to its origin, about which there is some popular misapprehension. Its history is as follows.

In many of the discussions that had taken place, in preparing the outline of the government that was sent to the committee of detail, a good deal of jealousy had been felt and expressed by some of the Southern members, not only with regard to the relative weight of their States in the representative system, but also with respect to the security of their slave property. Slavery, although it had existed in all of the States, and although there still remained in all of them excepting Ma.s.sachusetts some persons of the African race still held in that condition, was likely soon to disappear from the States of New Hamps.h.i.+re, Rhode Island, Connecticut, New York, and Pennsylvania, under changes that would be introduced by their const.i.tutions or by statutory provision. In the whole of New England, therefore, and in nearly all of the Middle States excepting Maryland, if the principles of the common law and of the law of nations were to be applied to such cases, the relation of master and slave, existing under the law of another State, could not be recognized, and there could be no means of enforcing a return to the jurisdiction which gave to the master a right to the custody and services of the slave. At the same time, it was apparent that, in the five States of Maryland, Virginia, North Carolina, South Carolina, and Georgia, slavery would not only be likely to continue for a very long period of time, but that this form of labor const.i.tuted, and would be likely long to const.i.tute, a necessary part of their social system. The theory on which the previous Union had been framed, and on which the new Union now intended to be consummated was expressly to be founded, was, that the domestic inst.i.tutions of the States were exclusively matters of State jurisdiction. But if a relation between persons, existing by the law of a particular State, was to be broken up by an escape into another State, by reason of the fact that such a relation was unknown to or prohibited by the law of the place to which the party had fled, it was obvious that this theory of the Union would be of very little practical value to the States in which such a relation was to exist, and to be one of great importance. If the territory of every State in which this relation was not to be recognized, were to be made an asylum for fugitives, the right of the master to the services of the slave would be wholly insecure.

It was in reference to this antic.i.p.ated condition of things, that General Pinckney of South Carolina, at the time when the principles that were to be the basis of the Const.i.tution were sent to the committee of detail,[362] gave notice, that, unless some provision should be inserted in their report to prevent this consequential emanc.i.p.ation, he should vote against the Const.i.tution. Considering the position and influence of this gentleman, his declaration was equivalent to a notice that, without such a provision, the Const.i.tution would not be accepted by the State which he represented.

Still, the committee of detail omitted to make any such special provision in their report of a Const.i.tution, and inserted only a general article that the _citizens_ of each State should be ent.i.tled to all the privileges and immunities of citizens in the several States.[363] General Pinckney was not satisfied with this, and renewed his demand for a provision "in favor of property in slaves."[364] But the article was adopted, South Carolina voting against it, and the vote of Georgia being divided.

As soon, however, as the next article was taken up, which required the surrender of fugitives from justice escaping from one State into another, the South Carolina members moved to require "fugitive slaves and servants to be delivered up, like criminals."[365] Objection was made, that this would require the executive of the State to do it at the public expense,[366] and that there was no more propriety in the public seizing and surrendering a slave or a servant, than a horse.[367] The proposition was then withdrawn, in order that a particular provision might be framed, apart from the article requiring the surrender of fugitives from justice. That article was then adopted without opposition.[368]

For a provision respecting fugitives from service, the movers had two remarkable precedents to which they could resort, and which had settled the correctness of the principle involved. Negro slavery, as well as other forms of service, had existed in the New England Colonies at a very early period. In 1643, the four Colonies of Ma.s.sachusetts Bay, Plymouth, Connecticut, and New Haven had formed a confederation, in which, among other things, they had mutually stipulated with each other for the restoration of runaway "servants"; and there is indubitable evidence, that African slaves, as well as other persons in servitude, were included in this provision.[369]

The other precedent was found in the Ordinance which had just been adopted by Congress for the settlement and government of the Territory northwest of the river Ohio; in which, when legislating for the perpetual exclusion of "slavery or involuntary servitude," a similar provision was made for the surrender of persons escaping into the Territory, "from whom labor or service is lawfully claimed in any one of the original States."

In making this provision, the early colonists of New England, and the Congress of the Confederation, had acted upon a principle directly opposite to the objection that was raised in the formation of the Const.i.tution of the United States. When it was said in the Convention, that the public authority ought no more to interfere and surrender a fugitive slave or servant than a horse, it was forgotten that, by the principles of the common law and the comity of nations, not only is property in movable things recognized by civilized states, but a remedy is afforded for rest.i.tution. But in the case of a fugitive person, from whom, by the law of the community from which he escapes, service is due to another, the right to the service is not recognized by the common law or the law of nations, and no means exist of enforcing the duties of the relation. If the case is to be met at all, therefore, it can only be by a special provision, in the nature of a treaty, which will so far admit the relation and the claim of service, as to make them the foundation of a right to restore the individual to the jurisdiction of that law which recognizes and enforces its duties.

This was precisely what was done by the New England Confederation of 1643, and the Ordinance of 1787; and it was what was now proposed to be done by the Const.i.tution of the United States. It was regarded at the time by the Southern States as absolutely necessary to secure to them their right of exclusive control over the question of emanc.i.p.ation,[370] and it was adopted in the Convention by unanimous consent,[371] for the express purpose of protecting a right that would otherwise have been without a satisfactory security. A proper understanding of the grounds of this somewhat peculiar provision is quite important.

The publicists of Christendom are universally agreed, that independent nations are under no positive obligation to support the inst.i.tutions, or to enforce the munic.i.p.al laws, of each other. So far does this negative principle extend, that the general law of nations does not even require the extradition of fugitive criminals, who have escaped from one country into another. If compacts are made for this purpose, they rest entirely upon comity, and upon those considerations of public policy which make it expedient to expel from our own borders those who have violated the great laws on which the welfare of society depends; and such compacts are usually limited to those offences which imply great moral as well as civil guilt. The general rule is, that a nation is not obliged to surrender those who have taken sanctuary in its dominions. At the same time, every political state has an undoubted right to forbid the entry into its territories of any person whose presence may injure its welfare or thwart its policy. No foreigner, whether he comes as a fugitive escaping from the violated laws of another country, or comes for the innocent purposes of travel or residence, can demand a sanctuary as a matter of right. Whether he is to remain, or not to remain, depends entirely upon the discretion of the state to which he has resorted;--a discretion that is regulated by a general principle, among Christian nations, while at the same time the general principle is subject to such exceptions as the national interest may require to be established.

Slavery, or involuntary servitude, being considered by public law as contrary to natural right, and being a relation that depends wholly on munic.i.p.al law, falls entirely within the principle which relieves independent nations of the obligation to support or to enforce each other's laws. It has not, therefore, been customary for states which have no peculiar connection, to surrender fugitives from that relation, or to do anything to enforce its duties. But such fugitives stand upon a precise equality with all other strangers who seek to enter a society of which they are not members. If the welfare of the society demands their exclusion, or if it may be promoted by a stipulation that they shall be taken back to the place where their service is lawfully due, the right to exclude or to surrender them is perfect; for every political society has the moral power, and is under a moral obligation, to provide for its own welfare. If such stipulations have not usually been made among independent nations, their absence may prove that the public interest has not required them, but it does not prove the want of a right to make them.

Each of the American States, when its people adopted the national Const.i.tution, possessed the right that belongs to every political society, of determining what persons should be permitted to enter its territories. Each of them had a complete right to judge for itself how far it would go, in recognizing or aiding the laws or inst.i.tutions of the other States. It is obvious, moreover, that States which are in general independent of each other, but which propose to enter into national relations with each other under a common government, for certain great political and social ends, may have reasons for giving a particular effect to each other's laws, or for sustaining each other's inst.i.tutions, which do not operate with societies not standing in such a relation; and that these reasons may be of a character so grave and important, as to amount to a moral obligation. Thus independent and disconnected nations are ordinarily under no obligation to support or guarantee each other's forms of government. But the American States, in entering into the new Union under their national Const.i.tution, found that a republican form of government in every State was a thing so essential to the welfare and safety of all of them, as to make it both a necessity and a duty for all to guarantee that form of government to each other. In the same way, although nations in general do not recognize the relation of master and servant prevailing by the law of another country, so far as to stipulate for the surrender of persons escaping from that relation, the American States found themselves surrounded by circ.u.mstances so imperative, as to make it both a necessity and a duty to make with each other that stipulation. These circ.u.mstances I shall now briefly state.