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this provision, a claim for each to use its discretion in interpreting the manner in which the guarantee shall be fulfilled?"

From the whole, it appears that while Judge Wayne maintained that the fugitive might be seized and removed under the provision alone, operating as private law, he also regarded the State in its political capacity as owing a duty under a law which Congress was bound to enforce, and in this adopted the second construction. Or, if he adopted any other construction, he regarded the several State as that "other person" upon whom the duty to deliver up is enjoined, and who, with the claimant, is a party in a case within the judicial power of the United States. It is also remarkable that Judge Wayne regards the State from which the fugitive escaped as the subject of the right correlative to this duty. See pages 644–646 of the report.

§757. Chief Justice Taney, in the beginning of his several Opinion, p. 626, says :-"But as the questions before us arise upon the construction of the Constitution of the United States, and as I do not assent to all the principles contained in the opinion just delivered, it is proper to state the points on which I differ." Judge Taney supports the fourth construction by affirming the owner's right to seize and remove the fugitive independently of statute regulations, and also by basing the power of Congress on the general power of maintaining whatever rights of private persons may exist under national law. On the same page his words are:— "I concur also in all that is contained in the opinion concerning the power of Congress to protect the citizens of the slaveholding 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." In his argument in favor of concurrent action, judicial as well as legislative, on the part of the States, Judge Taney indicates his adoption of the same construction; particularly on page 628, where he says:-" Moreover, the clause of the Constitution of which we are speaking does not purport to be a distribution of the rights of sovereignty by which certain

enumerated powers of government and legislation are confided to the United States. It does not deal with that subject. It provides merely for the rights of individual citizens of different States and places them under the protection of the general government; in order more effectually to guard them from invasion by the States. There are other clauses in the Constitution in which other individual rights are provided for and secured in the like manner; and it has never been suggested that the States could not uphold and maintain them, because they were guaranteed by the Constitution of the United States. * For example, the Constitution provides that no State shall pass any law impairing the obligation of contracts. This, like the right in question, is an individual right placed under the protection of the general government,' and in order to secure it Congress has passed a law authorizing a writ of error to the Supreme Court," &c.

*

Judge Taney's argument seems, briefly, to be this, thatsince the rights and obligations created by the provision are incident to relations of private persons under a law of national extent, the States must have the power to enforce that law as a rule of action for private persons within the several jurisdiction of the State.

§ 758. Mr. Justice Thompson said, p. 633:-"I concur in the judgment given by the court in this case. But not being able to yield my assent to all the doctrines embraced in the opinion, I will very briefly state the grounds on which my judgment is placed." Judge Thompson does not distinctly affirm the right of seizure and removal independently of the provisions of any statute (which doctrine was, however, necessarily implied in the judgment of the court), and says, p. 635:"If, as seems to be admitted, legislation is necessary to carry into effect the object of the Constitution, what becomes of the right where there is no law on the subject?" Yet he also says, p. 634, "The right of the master to the service of the slave according to the laws of the State from which he escaped, is a

It would be more correct to say that such rights rest on the national municipal law, which is to be maintained by the general Government as well as by the State Governments. On the same page, Judge Taney repeatedly uses the term, "individual right," meaning, apparently, the right of a private person.

right secured by the Constitution, and requires no law to fortify or strengthen it." He agrees with the Chief Justice in maintaining a concurrent power of legislation in the States, though, on the whole, his language is more in accordance with the third construction than with any other.

§759. Mr. Justice McLean disagreed with all the other members of the court by holding that the owner could not seize and remove the fugitive slave by virtue of the provision alone (pp. 666-673). It does not, however, follow from this alone that he could not have regarded the provision as having the effect of private law, according to the fourth construction. He seems to admit that independently of any statute the owner may have a perfectly legal right which may be judicially recognized (p. 670):-"I cannot perceive how any one can doubt that the remedy given in the Constitution, if, indeed, it give any remedy without legislation, was designed to be a peaceful one; a remedy sanctioned by judicial authority; a remedy guarded by the forms of law.' But the inquiry is reiteratedIs not the master entitled to his property? I answer, that he is. His right is guaranteed by the Constitution, and the most summary means for its enforcement is found in the acts of Congress."

Judge McLean's several Opinion contains but little explanatory of the basis of the legislative power of Congress. He treats the question of power in Congress as settled, and first refers to it by asking whether it is exclusive. On page 660:"Does the provision in regard to the reclamation of fugitive slaves vest the power exclusively in the federal Government?" His language in arguing that the power is exclusive of State legislation would indicate his adoption of the second construction. It will be seen that Judge McLean constantly speaks of a duty of the States to deliver up the fugitive on claim, even while he asserts that they have no power to act in the matter. He continues: "This must be determined from the language of the Constitution and the nature of the power. The language of the provision is general. It covers the whole ground, not in detail, but in principle. The States are inhibited from pass

1

Compare Chancellor Walworth's doctrine, ante, p. 451.

ing any law or regulation which shall discharge a fugitive slave from the service of his master;' and a positive duty is enjoined on them to deliver him up, 'on claim of the party to whom his service may be due.'

"The nature of the power shows that it must be exclusive.' It was designed to protect the rights of the master, and against whom? Not against the State, nor the people of the State in which he resides; but against the people and the legislative action of other States where the fugitive from labor might be found. Under the confederation, the master had no legal means of enforcing his rights in a State opposed to slavery. A disregard of rights thus asserted was deeply felt in the South. It produced great excitement, and would have led to results. destructive of the Union. To avoid this, the constitutional guarantee was essential.

"The necessity for this provision was found in the views and feelings of the people of the States opposed to slavery; and who, under such an influence, could not be expected favorably to regard the rights of the master. Now, by whom is this paramount law to be executed?

"It is contended that the power to execute it rests with the States. The law was designed to protect the rights of the slaveholder against the States opposed to those rights; and yet, by this argument, the effective power is in the hands of those on whom it is to operate.

"This would produce a strange anomaly in the history of legislation. It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies that ever assembled, they were, perhaps, most exempt.

"The clause of the Constitution under consideration declares that no fugitive from labor shall be discharged from such labor, by any law or regulation of the State into which he may have fled. Is the State to judge of this? Is it left for the State to determine what effect shall be given to this and other parts of the provision?

1

Compare 9 Ohio, 269, Sutliff, J.

2

Compare ante, p. 462, note.

"This power is not susceptible of division. It is a part of the fundamental law, and pervades the Union. The rule of action which it prescribes was intended to be the same in all the States. This is essential to the attainmeut of the objects of the [662] law. If the effect of it depended, in any degree, upon the construction of a State by legislation or otherwise, its spirit, if not its letter, would be disregarded. This would not proceed from any settled determination in any State to violate the fundamental rule, but from habits and modes of reasoning on the subject. Such is the diversity of human judgment, that opposite conclusions, equally honest, are often drawn from the same premises. It is, therefore, essential to the uniform. efficacy of this constitutional provision that it should be considered, exclusively, a federal power. It is in its nature as much so as the power to regulate commerce, or that of foreign intercourse."

In the further examination of this question, Judge McĹean, even while denying that the States would have any legislative power over the subject even had Congress not legislated, maintains the idea that the duty created by the clause is the duty of the States. In that part of his Opinion which relates to the validity of the Act of Congress in imposing duties on State magistrates, on page 665, he says:

"The Constitution requires that such person shall be delivered up, on claim of the party to whom the service is due.' Here is a positive duty imposed; and Congress have said in what mode this duty shall be performed. Had they not the power to do so? If the Constitution was designed, in this respect, to require, not a negative but a positive duty on the State, and the people of the State, where the fugitive from labor may be found-of which, it would seem, there can be no doubt it must be equally clear that Congress may prescribe in what manner the claim and surrender shall be made. I am therefore brought to the conclusion that, although, as a general principle, Congress cannot impose duties on State officers, yet in the cases of fugitives from labor and from justice, they have the power to do so.

"In the case of Martin's Lessee v. Hunter, 1 Wheat. Rep.

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