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seizure, would always be lawful, so that whoever should rescue such slave from that custody would do it at the risk of an action by such master for damages.'

$ 745. In February Term, 1836, before the New Jersey Superior Court, was the case, The State v. The Sheriff of Burlington, otherwise called Helmsley's case, which has already been noted in connection with the question of the validity of the statute of the State.'

1 The Chancellor's doctrine seems to have been also that of the Committee on the Judiciary of the Massachusetts House of Representatives, which, in 1837, reported on the expediency of restoring the writ of homine replegiando, or of providing some other process by which one under personal restraint may try his liberty before a jury." See Am. Jurist, vol. XVII., p. 104. The bill reported by the Committee passed both branches of the Legislature without objection. Ibid. 95. See note, ante, p. 32.

2

Ante, p. 64. The portion of Chief Justice Hornblower's Opinion which bears most directly on the present inquiry is as follows:

'By the 2d clause of the 6th Art. of the Constitution of the United States, it is declared that the Constitution and laws of the United States 'made in pursuance thereof' shall be the SUPREME law of the land, and that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' If, then, Congress has a right to legislate on this subject, the Act of Congress must prevail, and the statute of New Jersey is no better than a dead letter. They cannot both be the SUPREME law of the land, and constitute the rule of action in one and the same matter. The judges of this State are bound by the Act of Congress, anything in the constitution or law of this State to the contrary notwithstanding. If both acts were precisely the same in all their provisions and sanctions, yet a proceeding in conformity therewith would derive all its authority from the Act of Congress, and not from the law of this State. But the provisions of the two statutes are very dissimilar, and as the proceedings in this case profess to be in pursuance of the act of this State, it follows, of course, upon the supposition that Congress has a right to legislate in the matter, that the prisoner has been unlawfully committed, and ought to be discharged out of the custody of the Sheriff. Upon this ground I might refrain from all further discussion, and render my judgment at once; but then I should be understood as fully admitting the right of Congress to legislate upon the subject—an admission I am by no means prepared to make, any more than I am to express a contrary opinion. I intend only to assign the reasons why I do not at once admit the supremacy of the Act of Congress, reserving to myself the right of forming and expressing a final decision hereafter, if in this or in any other case such decision shall become necessary.

"The 1st and 2d sections of the 4th Article of the Constitution of the United States are declarative of certain international principles agreed upon between the parties to that instrument."

Here the judge cites the four several provisions, and proceeds to say:—

"By adopting the Constitution, the several States became bound to carry out in practice these several constitutional principles; but whether the manner of doing so is to be regulated by State legislation, or by general Acts of Congress, is the question. The framers of the Constitution thought proper (and it is to be supposed that they did so for some sufficient reason) to arrange the four particu lars, above mentioned, under two distinct sections. By the first it is provided that full faith and credit shall be given in each State to the public acts, records, &c., of every other State. But it does not stop here; if it did, this provision would stand in the same category with those contained in the next section, and

Although in this case the constitutionality of the Act of Congress was not before the court, yet it was hardly possible to determine the legality of the custody claimed in that case without reference to the effect of the provision in the Constitution. As an authority on this question of construction,

there would seem to have been no reason for the distribution of these principles into distinct sections. But it is added:- And the Congress may, by general laws, prescribe the manner in which said acts, &c., shall be proved, and the effect thereof.' Then follows the 2d section, embracing the other three principles above mentioned, but without annexing to them, or to either of them, the right of legislation by the general Government. Hence, there seems to arise a fair argument that the framers of the Constitution had no idea that the simple statement of these several international stipulations would confer on Congress any legislative powers concerning them; but as they designed to subject the first particular to the control and regulation of the general Government, they arranged it under a distinct section, and in express terms annexed to it the power of legislation, and then threw the other three stipulations together in another section of the instrument without saying anything more, because no such power was intended to be given to Congress respecting them. A different construction would expose the authors of the Constitution to the charge of encumbering it with a useless provision, worse, indeed, than useless, because, if simply writing down and adopting the several conventional principles comprehended in the second section carried along with them a right in the general Government to provide by law for the manner in which they should be executed, the express grant of such a power in the preceding section was not only useless, but calculated to create a doubt and uncertainty as to the right of the Congress to legislate on matters contained in the second section. For if the power of legislation is impliedly annexed to the simple stipulations of the 2d section, it is difficult to perceive why the same implication would not have arisen upon the simple declaration that full faith and credit should be given to the public acts of one State, in the courts of every other State. That the Constitution has, in express terms, given the right of legislation to Congress in reference to one of the four conventional items above mentioned, and remained silent in respect to the others, is, to my mind, a strong argument that no such power was intended to be given in connection with them.

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Again: Are there not sound political as well as judicial reasons for granting to Congress the power of legislation in the one case, and withholding it in the others? No one State could prescribe the manner in which its own public acts, records, and judicial proceedings should be proved in the courts of another State. The rule of evidence is lex loci, and every court might have required a different mode of proof. This would have been very inconvenient. It was desirable, therefore, that there should be one uniform rule throughout the country on that subject. But the manner and form in which public acts and records should be exemplified was a matter about which Congress may safely legislate without discomposing the pride and complacency of State sovereignty, and without the danger of coming into conflict with State institutions and local jurisprudence. Not so in respect to the other stipulations. Legislation by Congress, regulating the manner in which a citizen of one State should be secured and protected in the enjoyment of his citizenship in another, would cover a broad field, and lead to the most unhappy results. So, too, general Acts of Congress, prescribing by what persons or officers, with or without process, refugees from justice, or persons escaping from labor may be seized or arrested in one State, and forcibly carried into another, can hardly fail to bring the general Government into conflict with the State authorities, and the prejudices of local communities. Such, to some extent, has been the case in this and other States. A constructive power of legis lation in Congress is not a favorite doctrine of the present day. By a large por tion of the country, the right of Congress to legislate on the subject of slavery at

Chief Justice Hornblower's Opinion is not altogether extrajudicial. That portion of the Opinion in which his construction is set forth, is given in the note. It will be seen that he maintains the first of the constructions herein before enumerated.

§ 746. In the matter of Peter, alias Lewis Martin, about the year 1837, 2 Paine's C. C. R. 348, Judge Thompson said, ib. 354: "But it is said that Congress has no power to legislate at all upon this subject, there being no express delegation of such power in the Constitution. The provision is," &c. "This provision contains a prohibition to the States to pass any law discharging the persons escaping from the labor or service which he owes to another; and all such laws would be null and void, and no positive legislation might be necessary on the subject. But to secure the benefit of the latter part of the

all, even in the District and Territories over which it has exclusive jurisdiction, is denied, and surely, by such, it will not be insisted that Congress has a constructive right to prescribe the manner in which persons residing in the free States shall be arrested, imprisoned, delivered up, and transferred from one State to another, simply because they are claimed as slaves.

"In short, if the power of legislation upon this subject is not given to Congress in the 2d section of the 4th Article of the Constitution, it cannot, I think, be found in that instrument. The last clause of the 8th section of the 1st Article gives to Congress a right to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States, or in any department or office thereof. But the provisions of the 2d section of the 4th Article of the Constitution covers no grant to, confides no trust, and vests no powers in the Government of the United States. The language of the whole office of that section is to establish certain principles and rules of action by which the contracting parties are to be governed in certain specified cases. The stipulations respecting the rights of citizenship, and the delivery of persons fleeing from justice, or escaping from bondage, are not grants of power to the general Government, to be executed by it, in derogation of State authority; but they are in the nature of treaty stipulations, resting, for their fulfillment, upon the enlightened patriotism and good faith of the several States.

"The argument in favor of Congressional legislation, founded on the suggestion that some of the States might refuse a compliance with these constitutional provisions, or neglect to pass any laws to carry them into effect, is entitled to no weight. Such refusal would amount to a violation of the national compact, and is not to be presumed or anticipated. The same argument carried out in its results would invest the general Government with almost unlimited power, and extend its constructive rights far beyond anything that has ever been contended for. The American people would not long submit to a course of legislation by Congress founded on no better authority than the unjust assumption that the States, if left to themselves, would not in good faith carry into effect the provisions of the Constitution.

"But, as I have said before, it is not my intention to express any definite opinion on the validity of the Act of Congress, nor is it necessary to do in this case, as the proceeding in question has not been in conformity with the provisions of this Act, but in pursuance with the law of this State."

provision, some legislation on the subject either by Congress or by the States is indispensable. It declares that the party escaping shall be delivered up to the party to whom he owes labor and service; but the mode and manner in which this is to be done and enforced must be provided for by law; the Constitution makes no provision on that subject, and it cannot be presumed that it was intended to leave this to State legislation. There is no express injunction upon the States to pass any laws on the subject, and unless they choose to do it, the great benefit intended to be secured to slaveholders would be entirely defeated. We know, historically, that this was a subject that created great difficulty in the formation of the Constitution, and that it resulted in a compromise not entirely satisfactory to a portion of the United States. But whatever our private opinions on the subject of slavery may be, we are bound in good faith to carry into execution the constitutional provisions in relation to it; and it would be an extravagant construction of this provision in the Constitution to suppose it to be left discretionary in the States to comply with it or not, as they should think proper.":

§ 747. The well-known case of Prigg v. The Commonwealth of Pennsylvania (1842), 16 Peters, 539, commonly called Prigg's case, is the leading authority on the construction of this clause, and the basis of the power of Congress. The point actually before the Court was, whether the law of Pennsylvania, of the 26th of March, 1826, sec. 1, was in violation of the Constitution of the United States, and, on the whole, it would appear that the Court decided that the State law was unconstitutional without reference to the law of Congress, and simply with reference to the existence of the constitutional provision. If the Court were right in taking this posi

'The case, Dixon v. Allender, in the Supreme Court of New York, August, 1837, 18 Wendell, 678, presents a question of practice. No judgment involving a decision on the validity of the law of Congress or the State law appears to have been pronounced.

În 3 Wisc. 115, Smith, J., commenting on this case, said:-"The majority of the Court decided that the clause gave the owner of a fugitive slave the right to seize him in any State of the Union, without process, and take him back to the State from which he escaped, and that the law of Pennsylvania which interfered with such right was repugnant to the clause itself, and therefore void. This was the point in judgment. This was the legal scope of the decision, and no more."

tion, the question of the constitutionality of the law of Congress could not, properly, be before the Court. But the co-ordinate question of the proper construction of the clause was necessarily passed upon. The questions considered by the Court were:-Has the owner, under the provision itself and irrespectively of the Act of Congress, an indefeasible right to seize his fugitive slave and remove him from the State?-Has the State any power to interfere with the owner in the exercise of that right, or any other power in reference to the right of such master and the obligation of the fugitive?-Has Congress power to legislate in respect to such right and obligation? -May the State magistrates mentioned in the Act of 1793 perform the functions in that Act designated?'

Although this is not the proper place in this treatise for considering all these questions, yet they are so intimately connected with the questions which in this chapter are to be examined, that the Opinion of the Court is given here in full, from 16 Peters, 608, as delivered by Mr. Justice Story.

§748. "This is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the judiciary act of 1789, ch. 20, for the purpose of revising the judgment of that Court, in a case involving the construction of the Constitution and laws of the United States.

"The facts are briefly these: The plaintiff in error was indicted, in the Court of Oyer and Terminer for York county, for having, with force and violence, taken and carried away from that county, to the State of Maryland, a certain negro

'Mr. Johnson, Attorney-General and of Counsel for Pennsylvania (16 Peters', 591) stated the three points arising in the case, as follows:

"1. Is the power of prescribing the mode of delivering up fugitives from service or labor under the 2d section of the 4th Article of the Constitution exclusively vested in the national Government?

2. If it is not, is it concurrently vested in the State and general Governments, to be exercised on particular terms? or is it solely vested in the State Governments?

"3. Have the States the right to inflict penalties, as in cases of crimes, upon those who seize and remove fugitive slaves out of their territory without pursuing the mode prescribed either by the Act of Congress of 1793, or by acts passed on the same subject by the States themselves?" He then says:-"The last of these three questions is the most material in the present case; perhaps it is the only real question in this case, upon which the Court is imperatively called to pronounce its judgment." And the same position is supported with great force, ib. 601, &c.

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