Constitution as a treaty or compact between the States, as absolutely distinct and sovereign nationalities at the time of its adoption, and proposed to "ascertain the true meaning and effect" of this provision, as determined by such a theory (ib. 295-297). He observed of the provision:-"We think it was intended to guaranty to the owner of a slave, living within the territory of a State in which slavery is permitted, the rights conferred upon such owner by the laws of such State, and that no State should make its own territory an asylum and a sanctuary for fugitive slaves, by any law or regulation, by which a slave who had escaped from a State where he owed labor or service, into such State or Territory, should avoid being reclaimed; it was designed, also, to provide a practicable and peaceable mode by which such fugitive, upon the claim of the person to whom such labor or service should be due, might be delivered up."

After stating cases to which the provision does not apply, Judge Shaw further said, ib. 299:-"To the extent, however, to which this privilege or benefit goes, that of securing the return of persons, owing service or labor in one State, who had fled or escaped into another, this provision of the constitution must be regarded as complete and sufficient to the proposed right. But the constitution itself did not profess or propose to direct, in detail, how the rights, privileges, benefits, and immunities intended to be declared and secured by it, should be practically carried into effect; this was left to be done by laws to be passed by the legislature, and applied by the judiciary, for the establishment of which full provision was at the same time made. The constitution contemplated a division and distribution of the powers incident to a sovereign state, between the general government of the United States and the government of each particular State; a distribution not depending on local limits, but made by selecting certain subjects of common interest and placing them under the entire and exclusive jurisdiction of the general government; such, for instance, as the foreign relations of the country, the subject of war and peace, treaties, the regulation of commerce with foreign nations, and among the several States, and with the

Indian tribes. These are a few of the most prominent subjects, by way of illustration.' And the theory of the general government is, that these subjects, in their full extent and entire details, being placed under the jurisdiction of the general government, are necessarily withdrawn from the jurisdiction. of the State, and the jurisdiction of the general government, therefore, becomes exclusive. And this is necessary to prevent constant collision and interference; and it is obvious that it must be so, because two distinct governments cannot exercise the same power, at the same time, on the same subject matter. This is not left to mere implication. It is expressly declared, Article I., § 8, that congress shall have power 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 officer thereof. And by Art. 6, 'this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law of the land; and the judges in every State shall be bound thereby, anything in the constitution or laws of any State to the contrary notwithstanding.' All such laws, made by the general government, upon the rights, duties, and subjects, specially enumerated and confided to their jurisdiction, are necessarily exclusive and supreme, as well by express provision, as by necessary impli

1 In the report, an explanatory note to the Opinion is added, in which (7 Cushing, 317) the Judge again referred to these specific grants to the national Government to act in reference to certain international relations and interests of the States, arguing that the States stand in an international relation in respect to fugitive slaves, and that, therefore, it must have been intended that the whole subject should be within the legislative, judicial, and executive powers of the general Government. In this connection, the Judge said that the framers of the Constitution must have known "that in the States where slavery was allowed by law, certain rights attached to its citizens which were recognized by the laws of nations, and which could not be taken away without their consent. They, therefore, provided for the limited enjoyment of that right as it existed before, so as to prevent persons owing service under the laws of one State and escaping therefrom into another, from being discharged by the laws of the latter, and authorized the general Government to prescribe means for their restoration." Could Judge Shaw have intended to say that the owners of slaves had, by the laws of nations, a right which could not be taken away without their consent, to retake the slaves who had escaped into other States? He had, in this Opinion, declared that in the absence of the provision, the owner's claim would have depended entirely on the will of the State. Compare Judge Nelson, ante, p. 447, note.

cation. And the general government is provided with its executive, legislative, and judicial departments, not only to make laws regulating the rights, duties, and subjects thus confided to them, but to administer right and justice respecting them in a regular course of judicature, and cause them to be carried into full execution, by its own powers, without dependence upon State authority, and without any let or restraint imposed by it.

"It was, we believe, under this view of the right of requiring, specifically, the custody of one from whom service or labor is due by the laws of one State, and who has escaped into another, and under this view of the powers of the general government and the duty of congress, that the law of 1793 was passed."

In regarding the provision as a treaty between independent nations, in speaking of the States as bound by this compact and in attributing, at the same time, to the national Government a power to carry it into effect, Judge Shaw seems to have supported the second construction. But it is also implied that the provision itself creates legal rights and obligations in private persons which the national Government is bound to maintain, and this may better accord with the third or the fourth construction. But if either the second or third construction was adopted by Judge Shaw, it is plain that his assertion, in the passage above noted, that the framers of the Constitution had authorized the general Government to prescribe means for the restoration of fugitive slaves, has no better logical basis than may be found for the similar assertion made by Judge Story in Prigg's case.

The judge did not pretend that there was anything in the words of the Constitution to indicate such a grant of power; but the power is by him attributed to the Government as a whole, not to the judiciary or to some other department or officer thereof.'

1

The questions presented in this case to the State Court were also argued before Judge Sprague, of the United States District Court, on application for habeas corpus in behalf of Sims. The Court, in refusing the petition, sustained the law of Congress; but no opinion of the judge has been published. The application to Judge Woodbury, as United States Circuit Judge, was on different grounds, and his decision had no reference to the question here considered. IV. Monthly Law Reporter, 10.

§ 767. On the trial of Allen, U. S. Deputy Marshal at Syracuse, June 21, 1852, before the New York Supreme Court Circuit, for violation of the State law of 1840' in the matter of the fugitive Jerry, the defence relied on the warrant of a U. S. Commissioner under the statute of 1850. The trial was before Hon. Richard P. Marvin. A report of the arguments and the charge of the judge were printed in pamphlet, at the office of the Syracuse Daily Journal. In his charge, Judge Marvin discussed the authority of Congress. He regarded the Constitution as a compact between the States as separate nationalities, and the provision as a treaty binding the States as political persons. His argument appears to be, that power over all the international relations of the States was expressly given to the general Government, and that the States were forbidden to make treaties with each other; that hence they can have no power in the international relations arising out of this treaty provision; that the power over the whole subject must be in Congress, or at least is a resulting power in the Government. See pp. 88, 91, 92, of the pamphlet.

§ 768. In Miller v. McQuerry (1853), 5 McLean, 472, where the custody appears to have been exercised under the law of 1850, Judge McLean, sitting at chambers, answering the objection "that the Constitution left the power with the States, and vested no power on the subject in the federal Government," referred to Prigg's case and the weight of authority in favor of the power of Congress, and reasserted that view of the provision which is herein called the second construction.'

1See ante, pp. 59, 60.

As he seems to have done before in Prigg's case, ante, § 759. In this instance he said, 5 McLean, 474:-"This argument has been sometimes advanced, and it may have been introduced into one or more political platforms. In regard to the soundness of this position, I will first refer to judicial decisions. In the case of Prigg, &c., the judges of the Supreme Court, without a dissenting voice [Judge McLean must have forgotten Judge Baldwin], affirmed the doctrine that this power was in the Federal government. A majority of them held that it was exclusively in the general government. Some of the judges thought that a State might legislate in aid of the Act of Congress, but it was held by no one of them that the power could be exercised by a State except in subordination of the Federal power.

"Every State court which has decided the question, has decided it in accordance with the view of the Supreme Court. No respectable court, it is believed, has sustained the view that the power is with the State. Such an array of authority can scarcely be found in favor of the construction of any part of the Co

$769. The case of Booth, June term, 1854, 3 Wisconsin R. p. 1, was on petition of Booth, in vacation, to Judge Smith of the Supreme Court of the State, to be discharged from the custody of Ableman, U. S. Marshal, by whom he was held under a warrant issued by a U. S. Commissioner, for having "unlawfully aided, assisted, and abetted a person named Joshua Glover, held to service or labor in the State of Missouri under the laws thereof, and being the property of one Garland, and having escaped therefrom into the State of Wisconsin, to escape from" the custody of a U. S. Marshal, by whom he was held in virtue of a warrant issued by a U. S. District Judge. Judge Smith decided that the petitioner was entitled to his discharge

stitution which has ever been doubted. But this construction, sanctioned as it is by the entire judicial power, State as well as Federal, has also the sanction of the legislative power." Judge McLean then refers to the legislation of Congress, and speaks of the motive or object of the provision as of great importance. He then observes, on p. 475:

An individual who puts his opinion, as to the exercise of this power, against the authority of the nation in its legislative and judicial action, must have no small degree of confidence in his own judgment. A few individuals in Massachusetts may have maintained, at one time, that the power was with the States; but such views were, it is believed, long since abandoned, but they are reasserted now more as a matter of expediency than of principle.

66

[p. 476.] But whether we look at the weight of authority against State power, as asserted, or at the constitutional provision, we are led to the same result. The provision reads" (&c., reciting it). “This, in the first place, is a federal measure. It was adopted by the national convention, and was sanctioned as a federal law by the respective States. It is the supreme law of the land. Now, a provision which cannot be enforced, and which has no penalty for its violation, is no law. The highly respectable gentleman who read an ingenious argument in support of these views [Dr. Brisbane, of South Carolina] is too good a theologian to contend that any rule of action which may be disregarded without incurring a penalty, can be law. This was the great objection to the articles of confederation. There was no power to enforce its provisions. They were recommendatory and without sanctions. There is no regulation, divine or human, which can be called a law, without a sanction. Our first parents, in the garden, felt the truth of this. And it has been felt by violators of the divine or human laws throughout the history of our race.

"The provision in the constitution is prohibitory and positive. It prohibits the States from liberating slaves which escape into them, and it enjoins a duty to deliver up such fugitives on claim being made. The constitution vests no special power in Congress to prohibit the first or to enforce the observance of the second. Does it, therefore, follow that effect can be given to neither, if a State shall disregard it? Suppose a State declares a slave, who escapes into it, shall be liberated, or that any one who shall assist in delivering [p. 477] him up shall be punished. If this power belongs to the States and not to the Federal government, these regulations would be legal, as within the exercise of their discretion. This is not an ideal case. The principle was involved in the Prigg case, and the Supreme Court held the act of the State unconstitutional and void.

"It is admitted that there is no power in the Federal government to force any legislative action on a State. But if the Constitution guarantees a right to the