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principles of reasoning absolutely irresistible, that the latter ought to prevail. No court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

"The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no State law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged from service or labor, in consequence of any State law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any State law or State regulation, which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labor, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much the slave is discharged from; but whether he is [613] discharged from any, by the natural or necessary operation of State laws or State regulations. The question is not one of quantity or degree, but of withholding, or controlling the incidents of a positive and absolute right.

"We have said that the clause contains a positive and unqualified recognition of the right of the owner in the slave, unaffected by any State law or regulation whatsoever, because there is no qualification or restriction of it to be found therein; and we have no right to insert any which is not expressed, and cannot be fairly implied; especially are we estopped from so doing, when the clause puts the right to the service or labor upon the same ground and to the same extent in every other State as in the State from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also; the owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own State confer upon him as property; and we all know that this right of seizure and recaption is universally acknowledged in all the slaveholding States. Indeed, this is no more than a mere affirmance of the principles of the

common law applicable to this very subject. Mr. Justice Blackstone (3 Bl. Comm. 4) lays it down as unquestionable doctrine. Recaption or reprisal (says he) is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant; in which case the owner of the goods, and the husband, parent, or master may lawfully claim and retake them, wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace.' Upon this ground we have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence. In this sense and to this extent this clause of the Constitution may properly be said to execute itself; and to require no aid from legislation, State or national.

"But the clause of the Constitution does not stop here; nor, indeed, consistently with its professed objects, could it do so. Many [614] cases must arise in which, if the remedy of the owner were confined to the mere right of seizure and recaption, he would be utterly without any redress. He may not be able to lay his hands upon the slave. He may not be able to enforce his rights against persons who either secrete, or conceal, or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership; as to the courts in which he shall sue, and as to the actions which he may bring, or the process he may use to compel the delivery of the slave. Nay, the local legislation may be utterly inadequate to furnish the appropriate redress by authorizing no process in rem, or no specific mode of repossessing the slave, leaving the owner, at best, not that right which the Constitution designed to secure a specific delivery and repossession of the slave, but a mere remedy in damages, and that perhaps against persons utterly insolvent or worthless. The State legislation may be entire ly silent on the whole subject, and its ordinary remedial process framed with different views and objects; and this may be in

nocently as well as designedly done, since every State is perfectly competent, and has the exclusive right to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases which its own policy and its own institutions either prohibit or discountenance.

"If, therefore, the clause of the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced in cases where it did not execute itself, it is plain that it would have, in a great variety of cases, a delusive and empty annunciation. If it did not contemplate any action either through State or national legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right, it would be left to the mere comity of the States to act as they should please, and would depend for its security upon the changing course of public opinion, the mutations of public policy, and the general adaptations of remedies for purposes strictly according to the lex fori."

$749. In the portion of the Opinion above cited the provisions had been regarded as private law, creating perfect legal rights and obligations of private persons, in accordance with the fourth construction. But in that which follows, Judge Story begins to favor either the second or the third construction, by speaking of a duty of delivery correlative to the claimant's right :

"And this leads us to the consideration of the other part of the clause, which implies at once a guaranty and duty. It says, 'But he (the slave) shall be delivered up on claim of the party to [615] whom such service or labor may be due.' Now, we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some farther remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited, but at the same time an equally expressive, definition

VOL. II.--30

was given by Lord Dyer, as cited in Stowell v. Zouch, Plowden, 359; and it is equally applicable to the present case: that 'a claim is a challenge by a man of the propriety or ownership of a thing, which he has not in possession, but which is wrongfully detained from him.' The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When, and under what circumstances, shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled?

"These, and many other questions, will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution guarantees the right, and if it requires the delivery upon the claim of the owner, (as cannot well be doubted), the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. 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 entrusted. 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 [616] 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 con

clusion 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."

§ 750. It will be noticed that in the paragraph last quoted the judge does not designate the person on whom the Constitution. has imposed the duty of delivery. By his inferring that "the national Government is clothed with appropriate authority and functions to enforce it," i. e., the delivery, it would seem that he supposed that the duty was imposed on some person other than that national Government. But after saying that "the States cannot be compelled to enforce them," i. e., the provisions of the clause, he argues that the States cannot be held "bound to provide means to carry into effect the duties of the national Government;" that "the Government is bound, through its own proper departments, to carry into effect all the rights and duties imposed upon it by the Constitution."

That Judge Story here conceived of the duty imposed as a duty of the national Government correlative to the claimant's right, and not a duty of the several State correlative to the owner's right, which duty and right the national Government was bound to enforce and maintain, appears from the next paragraph, which seems to be the key-stone of the whole Opinion :

"It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property capable of being recognized and asserted by proceedings before a Court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case 'arising under the Constitution' of the United States; within the express dele

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