The Journal of Negro History, Volume 6, 1921Various
History
The Journal of Negro History, Volume 6, 1921
Various
African Americans -- Periodicals
In making the national government the patron of slavery, a new sort of
nationalism as a defence of that institution developed thereafter,
however, and culminated in the Dred Scott decision.[4] To justify the
high-handed methods to protect the master's property right in the
bondman, these jurists not only referred to the doctrines of Marshall
already set forth above but relied also upon the decisions of Justice
Storey, the nationalist surviving Chief Justice Marshall. They
believed with Storey that a constitution of government founded by the
people for themselves and their posterity and for objects of the most
momentous nature--for perpetual union, for the establishment of
justice, for the general welfare and for a perpetuation of the
blessings of liberty--necessarily requires that every interpretation
of its powers have a constant reference to those objects. No
interpretation of the words in which those powers are granted can be a
sound one which narrows down every ordinary import so as to defeat
those objects.
In the decision of _Prigg_ v. _Pennsylvania_, when the effort was to
carry out the fugitive slave law,[5] the court, speaking through
Justice Storey in 1842, believed that the clause of the Constitution
conferring a right should not be so construed as to make it shadowy or
unsubstantial or leave the citizen without the power adequate for its
protection when another construction equally accordant with the words
and the sense in which they were used would enforce and protect the
right granted. The court believed that Congress is not restricted to
legislation for the execution of its expressly granted powers; but for
the protection of rights guaranteed by the Constitution, may employ
such means not prohibited, as are necessary and proper, or such as are
appropriate to attain the ends proposed. The court held, moreover, in
_Prigg_ v. _Pennsylvania_, that "the fundamental principle applicable
to all cases of this sort, would seem to be, that when the end is
required the means are given; and when the duty is enjoined, the
ability to perform it is contemplated to exist on the part of the
functionaries to whom it is entrusted." It required very little
argument to expose the fallacy in supposing that the national
government had ever meant to rely for the due fulfillment of its
duties and the rights which it established, upon State legislation
rather than upon that of the United States, and with greater reason,
when one bears in mind that the execution of power which was to be the
same throughout the nation could not be confided to any State which
could not rightfully act beyond its own territorial limits. All of
this power exercised in executing the Fugitive Slave Law of 1793 was
implied, rather than such direct power as that later conferred upon
Congress by the Thirteenth Amendment, which provided that Congress
should have power to pass appropriate legislation to enforce it.
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