gation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to that right; and if so, then it may prescribe the mode and extent in which it shall be applied, and how, and under what circumstances the proceedings shall afford a complete protection and guaranty to the right.'

Judge Story does not here indicate this "other person,' who, with the claimant-owner, is one of the "parties adverse to each other," in "a controversy between the parties, or in a case arising under the Constitution' of the United States within the express delegation of judicial power given by that instrument." But since he had, in the preceding paragraph, attributed the duty of delivery either to the State in which the fugitive is found, or to the national Government, he must have found this "other person" in one of these two.

It is possible that Judge Story may have thought that this controversy or case under the Constitution would not be a suit either in law or equity. But it seems very unlikely that he should have taken no notice of the thirteenth Amendment,' in this connection, if he had supposed a State of the United States to be the party defendant in this case or controversy. It might, from this alone, be inferred that Judge Story did not discover this "other person " in a State of the United States."

'In James Scott's case, 1851, Judge Sprague, of the U. S. Dist. Court for Massachusetts, said, IV. Monthly Law R. p. 160:-"The remark made in the Opinion delivered in Prigg v. Pennsylvania, that a claim for a fugitive from labor was within the judicial power, was an obiter dictum, and can be reconciled with what was deliberately decided in the same case only by supposing that the judge who delivered the Opinion intended that Congress might legislate for it as within the judicial power, and provide for its being tried by a court, not that they must do so." If this was obiter dictum in the sense of being immaterial to the question actually before the court, so was that which Judge Sprague refers to as having been deliberately decided by it. For the constitutionality of the Act of Congress was not in question. If he calls it obiter dictum in the sense of not being reconcilable with other parts of the Opinion, that may be true, but it is no proof of its being less reasonable or correct. If inconsistent, it invalidates the reasoning of the whole Opinion and its juridical authority. But, so far from being obiter dietum, this passage is the key to the whole argument of Judge Story.

In which amendment it is declared:-"The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens of another State, or by citizens or subjects of any foreign state."

It is very plain that Judge Story adopted, as the basis of his Opinion, the argument of Mr. Meredith, counsel in this case for the State of Maryland (Sutliff, J., 9 Ohio, 270). Mr. Meredith had based the power of Congress on the idea that

§ 751. Judge Story then declares that this theory had been adopted by Congress.

"Congress has taken this very view of the power and duty of the national government. As early as the year 1791, the attention of Congress was drawn to it (as we shall hereafter more fully see) in consequence of some practical difficulties arising under the other clause, respecting fugitives from justice escaping into other States. The result of their deliberations was the passage of the act of the 12th of February, 1793, ch. 51 (7), which," &c.

The judge here gives an abstract of the statute, and then, on page 617 of the report, says :

"In a general sense, this act may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice and fugitive slaves; that is, it covers both the subjects, in its enactments; not because it exhausts the remedies which may be applied by Congress to enforce the rights, if the provisions of the act shall, in practice, be found not to attain the object of the Constitution; but because it points out fully all the modes of attaining those objects, which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Constitution. If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all State legislation upon the same subject; and, by necessary implication, prohibit it. For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot [618] be that the State legislatures have a right to interfere; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to

a case, within the judicial power, arises under the provision (16 Peters, 568). But it does not appear that he regarded the national Government as the party against whom the claim is to be made. That idea may have been original with Judge Story.

act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognized by this Court, in the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22; where it was expressly held, that where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for State legislation to add to the provisions of Congress upon that subject; for that the will of Congress upon the whole subject is as clearly established by what it had not declared, as by what it has expressed.

"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 [619] given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and neces

sary 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.

"Thus, for example, although the Constitution has declared that representatives shall be apportioned among the States according to their respective federal numbers; and, for this purpose, it has expressly authorized Congress, by law, to provide for an enumeration of the population every ten years; yet the power to apportion representatives, after this enumeration is made, is nowhere found among the express powers given to Congress, but it has always been acted upon as irresistibly flowing from the duty positively enjoined by the Constitution. Treaties made between the United States and foreign powers often contain special provisions, which do not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfill all the obligations of treaties. The senators and representatives in Congress are, in all cases, except treason, felony, and breach of the peace, exempted from arrest during their attendance at the sessions thereof, and in going to and returning from the same. May not Congress enforce this right by authorizing a writ of habeas corpus, to free them from an illegal arrest in violation of this clause of the Constitution? If it may not, then the specific remedy to enforce it must exclusively depend upon the local legislation of the States; and may be granted or refused according to their own varying policy, or pleasure. The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may require it. No express power is given to Congress to secure this invaluable right in the non-enumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this great writ of liberty is

usually provided for by the ordinary functions of legislation, and can be effectually [620] provided for only in this way, that it ought not to be deemed by necessary implication within the scope of the legislative power of Congress.

"These cases are put merely by way of illustration, to show that the rule of interpretation, insisted upon at the argument, is quite too narrow to provide for the ordinary exigencies of the national government, in cases where rights are intended to be absolutely secured, and duties are positively enjoined by the Constitution."

In this portion of the Opinion, the idea seems to prevail that the provision acts on the national Government, not on the several State, creating a duty of that Government. For here, as he does more at length in the sequel, Judge Story denies to the several States all power to act in the premises; a denial hardly consistent with the idea that the Constitution is constantly requiring from them the performance of a duty in this matter. So Judge Story speaks again, on page 618, of "duties exclusively imposed upon the national Government," and of the power "to execute these duties."

§ 752. Judge Story, on page 620 of the Report, proceeds to say :

"The very act of 1793, now under consideration, affords the most conclusive proof that Congress has acted upon a very. different rule of interpretation, and has supposed that the right as well as the duty of legislation on the subject of fugitives from justice, and fugitive slaves, was within the scope of the constitutional authority conferred on the national legislature. In respect to fugitives from justice, the Constitution, although it expressly provides that the demand shall be made by the executive authority of the State from which the fugitive has fled, is silent as to the party upon whom the demand is to be made, and as to the mode in which it shall be made. This very silence occasioned embarrassments in enforcing the right and duty at an early period after the adoption of the Constitution; and produced a hesitation on the part of the executive authority of Virginia to deliver up a fugitive from justice, upon the demand of the executive of Pennsylvania, in the