islative power, viewing it as already settled by authority. In the extract from the Opinion, given in the note below, there is, avowedly, a brief repetition of Judge Story's ideas given in Prigg's case. There is the same superfluous assertion of the necessity of the constitutional provision, and in some places a similar statement of its effect on private persons, harmonizing best with the fourth construction. But in other passages there is a general reference to "duties imposed on the general Government" to enforce the provision, "whether in favor of itself or others"-language which may better suit the third construction, and is not perhaps incompatible with the second.

after much deliberation, decided that the Act of Feb. 12, 1793, was not repugnant to the Constitution. The reasons for their opinion are fully explained by Justice Story, in Prigg v. Pennsylvania, 16 Peters, 611.

"In coming to that conclusion, they were fortified by the idea that the Constitution itself, in the clause before cited, flung its shield, for security, over such property as is in controversy in the present case, and the right to pursue and reclaim it within the limits of another State.

"This was only carrying out, in our confederate form of government, the clear right of every man at common law to make fresh suit and recapture of his own property within the realm. 3 Black. Com. 4.

"But the power by national law to pursue and regain most kinds of property, in the limits of a foreign Government, is rather an act of comity than strict right; and hence, as the property in persons might not thus be recognized in some of the States in the Union, and its reclamation not be allowed through either courtesy or right, this clause was undoubtedly introduced into the Constitution as one of its compromises, for the safety of that portion of the Union which did permit such property, and which otherwise might often be deprived of it entirely by its merely crossing the line of an adjoining State. 3 Madison Papers, 1569, 1589. This was thought to be too harsh a doctrine in respect to any title to property, of a friendly neighbor, nor brought nor placed in another State, under its laws, by the owner himself, but escaping there against his consent, and often forthwith pursued in order to be reclaimed.

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"The Act of Congress, passed only four years after the Constitution was adopted, was therefore designed merely to render effective the guarantee of the Constitution itself; and a course of decisions since, in the courts of the States and of the general Government, has for half a century exhibited great uniformity in favor of the validity as well as expediency of the Act. 5 Serg. & R. 62; 9 Johns. 67; 12 Wend. 311, 507; 2 Pick. 11; Bald. C. C. 326; 4 Wash. C. C. 326; 18 Pick. 215.

"While the compromises of the Constitution exist, it is impossible to do justice to their requirements, or fulfill the duty incumbent on us towards all the members of the Union, under its provisions, without sustaining such enactments as those of the statute of 1793.

"We do not now propose to review at length the reasoning on which this Act has been pronounced constitutional. All of its provisions have been found necessary to protect private rights, under the clause in the Constitution relating to this subject, and to execute the duties imposed on the general Government, to aid, by legislation, in enforcing every constitutional provision, whether in favor of itself or others. This grows out of the position and nature of such a Government, and is as imperative on it in cases not enumerated specially in respect to such legisla tion, as in others.

"That this Act of Congress, then, is not repugnant to the Constitution, must be considered as among the settled adjudications of this court."

§ 764. In Kauffman v. Oliver (1849), 10 Barr, 516, where the question was of the power of the State courts to entertain an action for harboring slaves and aiding them to escape, the Pennsylvania Supreme Court, Coulter, J., after saying that "slavery then is recognized and enforced here by virtue of that compact alone," and reciting the provision, says :-"Upon claim made by the person to whom service is due, the fugitive shall be delivered up. To whom shall this claim be made? Undoubtedly to the person or persons who shall have the alleged slave in custody, or who shall attempt to protect him from the owner to whom the services are due. And as, by the compact, the slave is not discharged from his service by escaping into a free State, the owner, or his authorized agent, may pursue and take him without riot or breach of the peace, by manucaption or reprisal in any place where the compact is obligatory, just in the same manner as if the recaption was in the slave territory. Sovereignty is so far yielded by the free States, and so far the constitutional provision executes itself. But if the fugitive is harbored, protected, concealed, or enticed by any persons, the owner must make the claim in a legal manner and by legal process, according to the Constitution and laws of the United States. The mode, manner, and circumstance of such claims are fully set forth in the Act of Congress of 1793, and the means of making such claims effectual are therein provided.

"Congress has regarded this claim to the service of the fugitive as a right of property, and that is the only light in which it can be viewed; and it must be made by one person or persons against another person or persons, properly, to be asserted in a court of justice. It is therefore a controversy between parties arising under the Constitution and laws of the United States, and must be referred to the forum having jurisdiction of such controversies. The Constitution of the United States declares that the judicial power of the courts of the United States shall extend to all cases arising under the Constitution and laws of the United States, &c. This cause of action, good or bad, is within the jurisdiction of the United States courts; for Congress has power to pass all laws neces

sary to make the claim efficacious and commensurate with the constitutional provision. But it must be done through the court over which Congress have power and through their instrumentality; otherwise the claim might be rendered abortive by the decisions of State courts pursuing their local policy. The claim ought primarily to be asserted in courts whose decisions would conclude the subject of dispute, and not in a foreign forum adverse to the whole process, if it pursued the feelings and policy of its own laws and the principles of the common law. The provisions of the Act of Congress must be pursued in the tribunals of the United States. There they meet with no warfare by local legislation or municipal peculiarities. And the person claiming the services of the fugitive is in the forum of that sovereignty and jurisdiction under which his claim is made. Within the terms of the compact, and within the Act of Congress, we acknowledge the validity of the claim when made in the proper forum. But outside the compact we breathe more freely. We feel the genial influence of the common law on this subject," &c.

In this case, the Pennsylvania court seems to be endeavoring to follow out the doctrine of Prigg's case. But the view taken by Judge Coulter accords best with the fourth construction. The idea that the claim contemplated in the provision can only be made when the owner demands the slave, as a tertium quid, from some antagonist party, is the same which Judge Story advanced, 16 Peters, p. 616 (ante, p. 467). But Judge Story found this antagonist party in the national Government. Under the first and second constructions the claim is against the State in which the fugitive is found, and which, under those constructions, is to make the delivery. There is probably no other judicial authority to be found which supports the view taken in this case, that is, that some private person in possession of the slave is by the Constitution required to deliver him up on claim.'

The court seems to hold that the power of Congress to legislate is founded upon the existence of such a case within the judicial power of the United States. But according to the same opinion there is no such case unless the supposed slave is concealed or detained as property by some third party. If, then, the supposed slave is merely acting as a free person, the Act of Congress cannot apply to him. His owner has no remedy given him by Congress and can have none.

In holding that the claim which arises under the Constitution is a case within the judicial power, and that the legislation of Congress is based on the purpose of carrying this power into effect, this Opinion agrees with the fourth construction and with that adaptation of the third construction which was held by Story to be the basis of the power of Congress.

§ 765. In State v. Hoppess (1845), 2 West. L. Journal, 289, the defendant, on the return to the writ of habeas corpus, returned that he had seized, as a fugitive from his service, the person whom he was required to produce, and had brought him before a justice, for the purpose of proving his claim according to the law of Congress. Judge Read, of the Supreme Court of Ohio, in remanding the supposed fugitive to the custody of the defendant, said, in respect to the objection that the provision "confers no power upon Congress to legislate upon the subject, but only imposes a duty upon the States, to be executed by their own laws :" "When the Constitution imposes a duty or secures a right, Congress is empowered to enact such laws as are necessary to enforce the one and secure the other. The subject of slavery is one of irritation and difficulty; and if it were left to the States to secure the rights of the master to his fugitive slave, the provision that the escape should not discharge the right to service would probably be of little worth," &c. "In this way the compromise might be totally evaded, or its entire spirit violated. And if Congress should attempt to enforce it, it would be by acting on the States." Then, after saying that this was the idea of the confederation:-"Our Constitution remedies this defect by bringing the powers of the general Government to act upon individuals directly, instead of States. Hence, the powers of Congress should be construed to remedy the evil and advance the intention of the framers of the Constitution. If this were wholly a new question, I should decide that Congress not only had the power, but that it is a duty imposed upon Congress to legislate upon this subject. But this is not an open question," &c. The idea seems to be, that the duty correlative to the owner's right is not a duty of the State; but the judge does not distinguish whether Congress gets the power through the power of the judiciary department

over a case arising between two private persons or between the owner and the general Government; or by a more immediate process of implication.'

In Driskill v. Parrish (1847), 3 McLean, 631, the action was for the penalty under the Act of Congress for obstructing the claimant and for harboring, &c. A portion of Judge McLean's charge' is important in the present inquiry as affirm. ing the right of the owner to seize and remove the fugitive independently of legislation, which doctrine it is herein supposed agrees best with the fourth construction."

§ 766. In the judicial opinions which, in cases arising under the Act of 1850, have sustained the power of Congress to legislate in respect to fugitive slaves, there is very little by way of independent discrimination of the basis of that power, and the decisions under the law of 1793 are mainly relied on, as precluding the inquiry.

The earliest decision under the Act of 1850, being also that which is most relied on in the later cases for sustaining that statute, is that of the Supreme Court of Massachusetts, in Sims' case (April, 1851), 7 Cushing, 285. Chief Justice Shaw, delivering the Opinion of the Court, began by describing the

1 Graves v. The State (1849), 1 Carter's Ind. 368, merely affirms Prigg's case as authority that State legislation is void.

23 McLean, 634:-"The object of the arrest in the present case was avowed to be to take the fugitives before a judicial officer. But the same principle applies where the arrest is made for the purpose of taking the fugitive out of the State, and without judicial sanction." The judge referred to Prigg's case as the authority. He also cited Johnson v. Tompkins, Baldwin, 581, and Washington, J., in 4 Wash. 329, as sanctioning such a seizure. But it will be remembered that in the last of these the seizure is justified for the purpose of taking before a judge (ante, p. 440), and in the first case the rights of the claimant rested on the law of the State of Pennsylvania. Ante, p. 446.

In Giltner v. Gorham (1848), 4 McLean, 402, where the action was for the value of slaves whom the plaintiff or his agents had attempted to seize in Michigan, with the design either to apply for a certificate or to remove without it, and whom the defendants enabled to escape to Canada, Judge McLean, in his Opinion or charge, seems again to have recognized the doctrine stated by him in the above case. The following sentences, from p. 425 of the report, are the most material, though in themselves nothing more than the ordinary judicial commonplace:-" :—“This provision of the Constitution is a guaranty to the slave States that no act should be done by the free States to discharge from service in any other State any one who might escape therefrom, but that such fugitive should be delivered up on claim being made. The clause was deemed so important, that, as matter of history, we know the Constitution could not have been adopted without it. As a part of that instrument, it is as binding upon courts and juries as any other part of it." And see, to the same purpose, in a similar case, Ray v. Donnell and Hamilton, ib. 505.

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