Civil War History - Secession and PoliticsWas it Slavery, or was it States Rights? Perhaps it was the election of Lincoln? What were the real reasons for Southern Secession and what were the political issues in this time of war? Find your answers here in the Secession and Politics Disussion.
I see that there has been some discussion recently in another thread about the implications of the Fugitive Slave Act of 1850. In fact, the 1850 Act and its predecessor, the Fugitive Slave Act of 1793, are extremely interesting from a constitutional perspective. I thought I’d post separately to explain why the fugitive slave acts were clearly “activist” statutes that depended on a “loose” construction of the Constitution that in other contexts southerners would have rejected as profoundly dangerous to their interests.
The Constitutional Provision
The relevant constitutional text appeared in Article IV, together with other clauses such as the Full Faith and Credit Clause, the Privileges and Immunities Clause and the Republican Form of Government Clause. The Fugitive Slave Clause provided:
“No person held in 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 Clause was placed in Article IV, dealing with issues involving the States, not Article I, defining the powers of Congress. Moreover, the express language of the Clause did not authorize Congress to do anything. The Clause seems intentionally reticent. It uses the passive voice (“shall be delivered up”), but avoids describing who shall do the delivering. Nonetheless, the most reasonable inference would seem to be that it is the States that shall do the delivering up.
The Fugitive Slave Act of 1793
The absence of explicit authority did not bother the Congress of the founding era. In February 1793, the Second Congress passed the Fugitive Slave Act of 1793. In brief, the Act:
1. Authorized slave owners or their agents to seize fugitive slaves;
2. Required the owner/agent to bring the fugitive slave before a federal or state judge;
3. Upon the production of satisfactory proof, required the federal or state judge to provide the owner/agent with a certificate entitling him to transport the slave to the state from which he had fled;
4. Established a “penalty” of $500 to be “forfeit[ed]” by persons who harbored fugitive slaves or obstructed their seizure or return, recoverable by the owner in a civil action.
It is worth emphasizing how extraordinary this provision was from a constitutional standpoint. First, the text of the Constitution did not expressly give Congress the power to enact legislation dealing with any of the topics described above. In addition, the third bullet point above was particularly intrusive on the States. It required state judges to take a particular action (“. . . it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney . . .”).
The Supreme Court
The lack of express authority also did not bother the Supreme Court. In Prigg v. Pennsylvania (1842), the Court held that the Constitution gave Congress implicit authority to pass the 1793 Act. The breadth of the reasoning in Justice Story’s lead opinion is truly breathtaking:
“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 intrusted. 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 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 intrusted 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.” (Emphasis added.)
Justice Story specifically addressed, and rejected, the contention that the 1793 Act was unconstitutional because it did not lie within the enumerated powers of Congress:
“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 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.” (Emphasis added)
In only one respect did Justice Story seem to doubt the constitutionality of the 1793 Act. He appeared to question whether Congress had the power to compel state judges and magistrates to act (my bullet point no. 3 above):
“We hold the act to be clearly constitutional, in all its leading provisions, and, indeed, with the exception of that part which confers authority upon state magistrates, to be free from reasonable doubt and difficulty, upon the grounds already stated. As to the authority so conferred upon state magistrates, while a difference of opinion has existed, and may exist still, on the point, in different states, whether state magistrates are bound to act under it, none is entertained by this court, that state magistrates may, if they choose, exercise that authority, unless prohibited by state legislation.”
Remarkably, in a separate opinion Chief Justice Taney (later of Dred Scott fame) specifically endorsed Justice Story’s reasoning and conclusion concerning the power of Congress to pass the 1793 Act:
“I concur also in all that is contained in the opinion concerning the power of congress to protect the citizens of the slave-holding states, in the enjoyment of this right; and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions; and no state is authorized to pass any law, that comes in conflict in any respect with the remedy provided by congress. The act of February 12th, 1793, is a constitutional exercise of this power . . ..”
The Danger to the South
Ironically, then, when southerners later pushed for a stronger federal Fugitive Slave Act, culminating in the Act of 1850, they were playing a dangerous game. The legislation they sought and obtained was necessarily based on an extremely “loose” interpretation of the Constitution and broad construction of Congress’ implied powers.
An example: Article IV also contained the Republican Form of Government Clause, and, unlike the Fugitive Slave Clause, the Republican Form of Government Clause contained language suggesting that the federal government – i.e., Congress – had the power to enforce it against the States:
“The United States shall guarantee to every State in this Union a republican form of government . . .. “ (Emphasis added.)
What if Congress determined that a republican form of government required adult male enfranchisement? Did the Republican Form of Government Clause give Congress the power to enact a law requiring States to give all adult males the vote?
Even more close to home for the south was the question of slavery in the territories (and the District of Columbia). The 1793 Act specifically applied to federal territories as well as to the States. Did not the Act, then, establish a founding-era precedent demonstrating that Congress had authority under the Constitution to legislate concerning slavery in the territories and in the District? In fact, in congressional debates “advocates of the Wilmot Proviso noted with relish [that] the [1793] fugitive-slave law was thus good precedent for Congress’s power to legislate with respect to slavery in the territories.” David P. Currie, The Constitution in Congress: Descent into the Maelstrom 1829-1861, p. 184 n.153.
I see that there has been some discussion recently in another thread about the implications of the Fugitive Slave Act of 1850. In fact, the 1850 Act and its predecessor, the Fugitive Slave Act of 1793, are extremely interesting from a constitutional perspective. I thought I’d post separately to explain why the fugitive slave acts were clearly “activist” statutes that depended on a “loose” construction of the Constitution that in other contexts southerners would have rejected as profoundly dangerous to their interests.
Thanks for starting this up. You made me realise I'd never gone any further back than Prigg v.ennsylvania in researching the subject.
Quote:
Originally Posted by elektratig
The Constitutional Provision ...
The relevant constitutional text appeared in Article IV, ...
The Clause was placed in Article IV, dealing with issues involving the States, not Article I, defining the powers of Congress. Moreover, the express language of the Clause did not authorize Congress to do anything. The Clause seems intentionally reticent. It uses the passive voice (“shall be delivered up”), but avoids describing who shall do the delivering. Nonetheless, the most reasonable inference would seem to be that it is the States that shall do the delivering up.
Hmm. I think JohnTaylor mentioned a case that seems tied to the same ideas a few weeks back. It involved the Governor of Ohio who refused to extradite a fugitive to Kentucky and was decided by the Supreme Court in 1860 or early 1861, IIRR. From memory, the Court said that the governor had a duty to deliver the fugitive, but that the Federal government had no power to compel him to do so. Is that about right, and would it be the same thought in this situation? If so, it also seems to have been the same logic used by Fire-Eaters like Rhett, Keitt, and Meminger to say they always considered the 1850 Fugitive Slave law unconstitutional.
Quote:
Originally Posted by elektratig
The Fugitive Slave Act of 1793
The absence of explicit authority did not bother the Congress of the founding era. In February 1793, the Second Congress passed the Fugitive Slave Act of 1793. ... It is worth emphasizing how extraordinary this provision was from a constitutional standpoint. First, the text of the Constitution did not expressly give Congress the power to enact legislation dealing with any of the topics described above. In addition, the third bullet point above was particularly intrusive on the States. It required state judges to take a particular action (“. . . it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney . . .”).
This early on, there were still slaves in most Northern states. Certainly there were in NY-PA-NJ, all of which freed their slave by gradual emancipation in the nineteenth centuty. It appears slaveowners had a lot of influence then, but opposition to slavery was growing and they already felt they needed to interfere with "states' rights" in their fear for their property.
Quote:
Originally Posted by elektratig
The Supreme Court
The lack of express authority also did not bother the Supreme Court. In Prigg v. Pennsylvania (1842), the Court held that the Constitution gave Congress implicit authority to pass the 1793 Act. The breadth of the reasoning in Justice Story’s lead opinion is truly breathtaking: ...
Prigg always baffled me a bit. Ostensibly it was about different standards of proof in MD and PA, the Marylander Prigg deciding to seize the fugitive when the PA court refused his request for a warrant, and Prigg being arrested for it. It went from there to further strengthening of the case for Congressional power and casting many existing Personal Liberty Laws into the position of being attempts to nullify the Federal Fugitive Slave Act.
This seems to have resulted in many Northern states passing new PLLs (since many existing ones were now declared unconstitutional). They concentrated on being unhelpful rather than directly confrontational to the Federal law. This in turn seems to have led slaveowners to push for a more powerful Fugitive Slave Act which passed with the Compromise of 1850. That aggressive interference in "states' rights" led the Northern states to pass still more modifications to their PLLs, particularly after the Federal government intervened with armed force in Massachusetts in 1855, and the Wisconsin Supreme Court to declare the Fugitive Slave Act of 1850 to be unconstitutional. Does that account of all that interaction sound about right to you? The Danger to the South
Quote:
Originally Posted by elektratig
Ironically, then, when southerners later pushed for a stronger federal Fugitive Slave Act, culminating in the Act of 1850, they were playing a dangerous game. The legislation they sought and obtained was necessarily based on an extremely “loose” interpretation of the Constitution and broad construction of Congress’ implied powers.
One of those situations that later comes home to roost when you least expect it. The old expression "Hoist by your own petard" has always appealed to me as an apt description for such things. Given the bloody mess of Civil War, it seems particularly appropriate if this opens the door for the US to act against the secessionists. Do you think it did?
Hmm. I think JohnTaylor mentioned a case that seems tied to the same ideas a few weeks back. It involved the Governor of Ohio who refused to extradite a fugitive to Kentucky and was decided by the Supreme Court in 1860 or early 1861, IIRR. From memory, the Court said that the governor had a duty to deliver the fugitive, but that the Federal government had no power to compel him to do so. Is that about right, and would it be the same thought in this situation? If so, it also seems to have been the same logic used by Fire-Eaters like Rhett, Keitt, and Meminger to say they always considered the 1850 Fugitive Slave law unconstitutional.
Hello, Tim. You are generally correct. In Kentucky v. Dennison, the US Supreme Court ruled (Roger Taney writing the majority opinion), as you said, that while the State executives have an obligation to render fugitives from justice (not fugitives from labor), the Federal government has no power to coerce a State executive to do so. This is, I believe, an extreme States' rights position. While the original request for extradition ocured in October 1859, and refused by then-Ohio governor Chase, the final USSC decision was announced in March 14th 1861.
Memminger, and Rhett believed that the 1850 law was unconstitutional, not because they were not unconcerned with rendition of fugitves from labor, but that they denied the Federal government had the power to erect a system that circumvented the State apparatus for the rendition of fugitives from labor. Their thinking was that a Federal power to compel compliance with the fugitives from labor provision of the Constitution implied a Federal power to thwart that provision of the US Constitution. It was this view that led them to oppose the law of 1850.
Of note, a Federal judge ruling that the Federal government that lacked the power to compel State compliance despite an expressed provision of the Constitution would surely imply that the Federal government lacked the authority to compel a State to remain in the Union when the Federal government had no enumerated power to force States to remain in the Union.
Respectfully,
John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
Hello, Tim. You are generally correct. In Kentucky v. Dennison, the US Supreme Court ruled (Roger Taney writing the majority opinion), as you said, that while the State executives have an obligation to render fugitives from justice (not fugitives from labor), the Federal government has no power to coerce a State executive to do so. This is, I believe, an extreme States' rights position. While the original request for extradition ocured in October 1859, and refused by then-Ohio governor Chase, the final USSC decision was announced in March 14th 1861.
Memminger, and Rhett believed that the 1850 law was unconstitutional, not because they were not unconcerned with rendition of fugitves from labor, but that they denied the Federal government had the power to erect a system that circumvented the State apparatus for the rendition of fugitives from labor. Their thinking was that a Federal power to compel compliance with the fugitives from labor provision of the Constitution implied a Federal power to thwart that provision of the US Constitution. It was this view that led them to oppose the law of 1850.
Thanks. Yes, it is hard to profess a belief in "states rights" and also support the Fugitive Slave Acts.
Quote:
Originally Posted by JohnTaylor
Of note, a Federal judge ruling that the Federal government that lacked the power to compel State compliance despite an expressed provision of the Constitution would surely imply that the Federal government lacked the authority to compel a State to remain in the Union when the Federal government had no enumerated power to force States to remain in the Union.
Yet, if you are referring to Taney here, we would have to find that his concurrence with Story in the Prigg case is directly contradictory to Kentucky v. Dennison. Many "states' rights" men were perfectly willing to violate the principle to favor the slave states.
This, I think, is what Elekratig was trying to point out, that you can't have it both ways, and that granting the Federal government unprecedented power to interfere with the states in favor of slavery also opened the door to the Federal government using such power for other purposes.
Of note, a Federal judge ruling that the Federal government that lacked the power to compel State compliance despite an expressed provision of the Constitution would surely imply that the Federal government lacked the authority to compel a State to remain in the Union when the Federal government had no enumerated power to force States to remain in the Union.
I disagree with your implication. The latter does not automatically follow the former, unless you imply that the federal government was thus powerless to compel the states to do anything at all, with which I also disagree.
I disagree with your implication. The latter does not automatically follow the former, unless you imply that the federal government was thus powerless to compel the states to do anything at all, with which I also disagree.
Cedarstripper
In the North Carolina Convention, on July 28th, 1788, Mr. MacLaine addressed this issue. He said: “The powers of Congress are limited and enumerated. We say we have given them those powers, but we do not say we have given them more. We retain all those rights which we have not given away to the general government. The gentleman is a professional man. If a gentleman had made his last will and testament, and devised or bequeathed to a particular person the sixth part of his property, or any particular specific legacy, could it be said that that person should have the whole estate? If they can assume powers not enumerated, there was no occasion for enumerating any powers. The gentleman is learned. Without recurring to his learning, he may only appeal to his common sense; it will inform him that, if we had all power before, and give away but a part, we still retain the rest. It is as plain a thing as possibly can be, that Congress can have no power but what we expressly give them. There is an express clause which, however disingenuously it has been perverted from its true meaning (i.e. by the Anti-Federalists, and ironically by later consolidationists like Webster), clearly demonstrates that they are confined to those powers which are given them. This clause enables them to "make all laws which shall be necessary and proper for carrying into execution the foregoing powers, and all other powers vested by this Constitution in the government of the United States, or any department or officers thereof." This clause specifies that they shall make laws to carry into execution all the powers vested by this Constitution; consequently, they can make no laws to execute any other power. This clause gives no new power, but declares that those already given are to be executed by proper laws. I hope this will satisfy gentlemen. (Elliot’s Debates, Vol. IV, pg. 140-1.)
The enumerated powers delegated to the Federal government by the people of the States would have been nugatory without the enabling section which was the “necessary and proper” clause. The rendition of fugitives from justice and fugitives from labor was a requirement that the people of the States agreed to abide by when they ratified the Constitution. Obviously, the majority of the people in some States had second thoughts about the provision. Whether the Federal government had the power to compel a State to comply with this provision is another matter.
The problem is that the Federal government is not a monolith. Some officials (e.g. Story) held the view that the Federal government could compel State compliance with a constitutional provision. Others (e.g. Taney) said they could not. Story has turned the tables, in my view. The Federal government (according to the men who advocated ratification in 1787-1790) had only those powers specifically delegated to it. Story says 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.” This view, while common among consolidationists, is contrary to the record of the debates over the Constitution in the State Conventions (when it mattered). Respectfully, John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
It so happens that I was reading what David Currie had to say about the first Fugitive Slave Act in The Constitution in Congress: The Federalist Period 1789-1801. He points out that even in 1793 there was already a precedent for the Congress interpreting the Constitution to grant it implied powers.
The very first statute passed by the First Congress was such an animal. In that statute, Congress specified the form of oath to be sworn by state, as well as federal officials under Article VI. But Article VI contained no provision expressly granting Congress the power to do so. It simply stated (emphasis added for clarity):
"The Senators and Representatives before mentioned, and the members of the several state legislatures, and all executive and judicial officers, both of the United States and of the several States, shall be bound by oath or affirmation, to support this Constitution . . .."
The statute concerning oaths raised debate. Elbridge Gerry argued that Congress lacked power to legislate on the subject. It was therefore up to the States to prescribe the precise form of oaths, and if they did not do so, federal judges would annul their acts for want of constitutional authority to adopt them. [Note the very interesting reliance upon a strong form of judicial review.] Ellsworth and the ever-cantankerous Maclay reportedly raised similar arguments in the Senate, and Madison apparently expressed doubts in the House. Nonetheless, the statute passed, based apparently on the argument of Elias Boudinot of New Jersey that Article VI implicitly authorized Congress to implement its provisions.
Although the oath statute encountered constitutional objections, the Fugitive Slave Act apparently did not. "The Annals reveal no debate on any of its provisions." The Federalist Period, p. 170.
...This view, while common among consolidationists, is contrary to the record of the debates over the Constitution in the State Conventions (when it mattered).
Since the matter was being debated, wouldn't that mean there were at least two sides to the debate, and might not Justice Story be in agreement with one of them?
Since the matter was being debated, wouldn't that mean there were at least two sides to the debate, and might not Justice Story be in agreement with one of them?
Regards,
Tim
Tim, I think that Story clearly was. While secessionists and slaveholders (two groups with extensive overlap) were reluctant to declare that the Federal government was empowered to compel State compliance of the fugitives fronm justice and fugitives from labor provisions of the US Constitution, I would wager that consolidationists (like Story and Webster) were likewise keen to not let a small thing like a few fugitive slave renditions stop the larger agenda of expanding and consolidating powers in Federal hands. To rule that the Federal government had no power to compel State compliance with Article IV might be taken to mean that the Federal government had no authority to engage in internal improvements and other implied or constructive Federal powers. Rendering fugitive slaves was distasteful, but acceptable as long as a broad interpretation of Federal powers was maintained.
Clearly, folks like Rhett and Memminger (and probably Taney) felt that it was more important to restrict Federal powers than to empower by construction the Federal government to go beyond the enumerated powers of the Constitution, even if that meant fugitive slaves would go un-rendered. Protecting slavery was important to some, but there were other more important issues (i.e. limiting the extent of Federal powers).
Respectfully,
John Taylor
__________________ "In this Constitution, the citizens of the United States appear dispensing a part of their original power in what manner and what proportion they think fit. They never part with the whole; and they retain the right of recalling what they part with." James Wilson of Pennsylvania, October 28th, 1787
Tim, I think that Story clearly was. While secessionists and slaveholders (two groups with extensive overlap) were reluctant to declare that the Federal government was empowered to compel State compliance of the fugitives fronm justice and fugitives from labor provisions of the US Constitution, I would wager that consolidationists (like Story and Webster) were likewise keen to not let a small thing like a few fugitive slave renditions stop the larger agenda of expanding and consolidating powers in Federal hands. To rule that the Federal government had no power to compel State compliance with Article IV might be taken to mean that the Federal government had no authority to engage in internal improvements and other implied or constructive Federal powers. Rendering fugitive slaves was distasteful, but acceptable as long as a broad interpretation of Federal powers was maintained.
Clearly, folks like Rhett and Memminger (and probably Taney) felt that it was more important to restrict Federal powers than to empower by construction the Federal government to go beyond the enumerated powers of the Constitution, even if that meant fugitive slaves would go un-rendered. Protecting slavery was important to some, but there were other more important issues (i.e. limiting the extent of Federal powers).
As I thought, then; thanks.
As to Taney and those who thought like him, I note that in the very first message of this thread we have the following, regarding the Story opinion in the Prigg case:
Quote:
Originally Posted by elektratig
Remarkably, in a separate opinion Chief Justice Taney (later of Dred Scott fame) specifically endorsed Justice Story’s reasoning and conclusion concerning the power of Congress to pass the 1793 Act:
“I concur also in all that is contained in the opinion concerning the power of congress to protect the citizens of the slave-holding states, in the enjoyment of this right; and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions; and no state is authorized to pass any law, that comes in conflict in any respect with the remedy provided by congress. The act of February 12th, 1793, is a constitutional exercise of this power . ...”
Chief Justice Taney seems to have been eager or happy to go along with this extension of Federal power when it benefits slave states.
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