The judgment of the State court in Ableman v. Booth appears to be reversed by the Supreme Court on this ground alone, without reference to the question of the constitutionality of the law of 1850. But in the conclusion of the Opinion (21 How. 526), Judge Taney says:-"But although we think it unnecessary to discuss these questions, yet, as they have been decided by the State court and are before us on the record, and we are not willing to be misunderstood, it is proper to say that, in the judgment of this Court, the Act of Congress commonly called the fugitive Slave Law, is, in all its provisions, fully authorized by the Constitution of the United States."

$777. In Ex parte Bushnell and Ex parte Langston, 9 Ohio, 76-325, the constitutionality of the Acts of Congress was sustained by Swan, Chief Justice, with Judges Peck and Scott; Judges Brinkerhoff and Sutliff dissenting. Judge Swan, ib. 185, states:-"The question before us is, whether the seventh section of the fugitive law, under which these relators were sentenced, is a nullity, for want of legislative power in Congress to pass any law whatever relating to fugitives from labor." In his Opinion he maintains the power to be in Congress; but solely on the authority of the earlier cases' in the

courts of the United States in cases arising under the Constitution and laws of the United States is now for the first time asserted and acted upon in the Supreme Court of a State."

An examination of these questions of concurrent and conflicting jurisdiction does not come within the proposed limits of this work. The law on the writ of habeas corpus in these cases has been set forth with great completeness by Mr. Rollin C. Hurd, of Ohio, in his recent work on Personal Liberty and the writ of Habeas Corpus, 164–207. The question raised by the case of United States v. Booth, is intimately connected with, if it does not directly depend upon, the question considered in the eleventh chapter-the true theory of the location of sovereign powers held by the States and the Government of the United States, as is illustrated by Judge Smith's reasoning in 3 Wisc. 190, which is based upon the extreme of one of the theories referred to in Vol I. p. 408, note, and which was formerly advocated principally by the Southern State's-Rights school.

I am informed by A. L. Collins, Esq., of the Wisconsin bar, that on the remittitur of this case from the Supreme Court of the United States to the Supreme Court of Wisconsin, the U. S. Dist. Atty. moved that it be received and filed. The motion was argued before Judges Cole and Dixon. Judge Cole adhered to the position taken by the court on the former occasion (ante, p. 521, note 2). Judge Dixon held that the Supreme Court of the United States had appellate jurisdiction, and that the remittitur should be received and filed. On this division the motion failed. A statement of the grounds of his opinion is said to have been published by Judge Dixon, about February, 1860.

"In this Opinion Judge Swan elaborately maintains the doctrine that the deci sions of the Supreme Court of the United States in respect to the distribution of sovereign power between the States and the national Government bind the State

national and State courts, and on general acquiescence in the law of 1793, particularly in reference to fugitives from justice. (9 Ohio, 186-191, 197, 198.) His argument, therefore, throws no light on the question of construction here considered, nor in relying on Prigg's case does Judge Swan indicate what construction of the provision he would find given by the Supreme Court of the United States; except by saying, on ib. 186:"That court have held unanimously, that, inasmuch as the Constitution of the United States secured by express provision the right to the reclamation of escaped slaves, the obligation to protect and enforce that constitutional right devolves upon the general government." This statement of the doctrine does not indicate whether the right is, in the first instance, correlative to a duty on the part of the States, which the national

sons.

courts in cases subsequently occurring; that there is no alternative between this doctrine and a forcible collision between the State courts and the national authorities. (See particularly 9 Ohio, 195.) This doctrine should be distinguished from that recognition of the supremacy of the Supreme Court of the United States to determine the rights and obligations of private persons in the cases which actually are before it for adjudication which is made in the earlier part of this work (Vol. I. pp. 428-432). The doctrine there intended is that, where the question is of the possession of sovereign power, the judiciary cannot determine it for future cases; the national executive and legislative departments in their action and the several States in all their departments must still interpret the Constitution according to their convictions-subject always to the power which the national judiciary has over the question when it arises in the application of law between individual perThis seems to be Judge Sutliff's doctrine in this case. (9 Ohio, 318.) The contrary doctrine destroys the independent action of the three functions of power, in the one case, and, in the other, renders State power a thing by permission and State sovereignty a name. It is morally certain that a series of decisions, without flaw of jurisdiction, supported by opinions consistent with themselves and with other expositions of the same tribunal and recognized by a majority of State authorities, will work the practical settlement of any such question. But any number of cases should not determine, if the majority rest on some one or two decisions, and if these were exceptionable in jurisdiction or derived “through the medium of reasonings lame, halting, contradictory, and of far-fetched implications, derived from unwarranted assumptions and false history." (Brinkerhoff, J., 9 Ohio, 227.) Judges Swan and Peck also seem to think that if a State court concludes against the constitutionality of a law of Congress, it must repudiate the authority of the Supreme Court to determine the rights of the parties in the particular case. This was apparently also the doctrine of the Wisconsin court in Booth's case, in refusing to certify their record. This is the other extreme. The true doctrine is, I think, that the State court must acknowledge the appellate jurisdiction of the United States judiciary and submit to its judgment, in the particular case. It is not for the State judiciary to force the State Government or the people of the State to resist the assumption of power by the national Government. The right of doing this rests, if anywhere, with the legislature or with "the people" of the State in Convention. The supposable instances of practical usurpation do not invalidate the doctrine. There are difficulties practically attending on any solution of such a question.

Government is to enforce by acting in their stead (the second construction), or a right correlative to a duty on the part of the national Government, of which duty Congress merely indicates the performance (the third construction), or a right correlative to obligations of the fugitive and all third parties, arising under private law contained in the Constitution (the fourth construction).'

No Opinion was delivered by Judge Scott on this case. Judge Peck, in his Opinion, reviews the cases at length, and relies altogether on them as controlling authority. He even expresses a doubt whether, if the question were then newly raised, the court could recognize the power in Congress.' His observations throw no light on the question of construction.

8778. Judge Brinkerhoff, dissenting, said, ib. 223 :--"These relators ought to be discharged, because they have been indicted and convicted upon a subject-matter in reference to

1

1 Judge Swan then enumerates the grounds taken against the power of Congress: among these one which does not commonly appear in the reports. Others, he says, insist "that the amendment to the Constitution which secures freedom of religious belief makes the provision in relation to the reclamation of slaves subordinate to it, and, by implication, of no obligation upon those who believe slavery a sin." No such objection appears in the argument for the relators in this case by Mr. Wolcott, the State's Atty. General.

66

29 Ohio, 211. "If the question were now res integra, and we, unaided by the history of the constitutional provision, and uninformed as to the previous decisions, long-continued use, and contemporaneous exposition, were now called upon, for the first time, to determine the precise effect of that provision and the power of Congress over the subject, it is probable that, giving a strict construction to the Constitution and the powers conferred by it, we might hold that Congress had no authority to legislate as to the reclamation of fugitives from service. But when we look," &c. But on p. 201, Judge Peck says that, A careful perusal of the "History of the Origin and Formation of the Constitution,' etc., by Curtis, and the supplement to Elliott's Debates, will satisfy every one at all familiar with the history," &c., that this provision "was deemed by many of the members, and those they represented, of great, if not of vital importance, and contributed largely to its adoption by some of the Southern States. He will also be satisfied that, if any legislation was required, in order to carry the provisions of that clause into effect, the framers of that instrument could not, from the nature of the interests involved, the difficulties before that time encountered, and those which might reasonably be anticipated in the future, have designed or intended to commit such necessary legislation to the States. Interpreting this clause in the light of the surrounding circumstances, he could entertain no doubt but that this clause had a material effect in procuring the adoption of the Constitution, and that all necessary legislation in regard to it ought to have been, and was by them supposed to be, committed to the national and not the State legislatures." This is a very perfect specimen of that method of expounding the Constitution, which was denounced by Judge Baldwin, in a passage cited in the preface of this work, p. ix. It is a fair counterpart to the supplementary canon which Judge Story introduced in Prigg's case (ante, p. 461).

which Congress has, under the Constitution of the United States, no legislative power whatever. As to the correctness of this proposition, there does not rest in my mind the shadow or glimmer of a doubt.' The federal government is one of limited powers," &c. Then, reciting the provision, “This is the only clause of the Constitution from which any body pretends to derive, or in which any body pretends to find a grant of power to Congress, to legislate on the subject of the rendition of fugitives from labor. I can find in it no such grant. The first part of it simply prohibits State legislation hostile to the rendition of fugitives from labor. Such fugitive shall not be discharged in consequence of any law or regulation' of the State into which he shall escape. But shall be delivered up.' By whom? By Congress? By the federal authorities? There are no such words; and no such idea is hinted at. This is evident from an inspection of the whole of the preceding portion of this article." Then reciting Art. 4, sec. 1, and the grant of power to Congress to legislate for the proof and effect of acts, &c., Judge Brinkerhoff says, "When they intended a grant of power to Congress, and not a mere contract stipulation by an injunction of duty upon the States, they say so, and leave us no room for cavil on the subject." Then citing the first two provisions of the second section, on privileges, &c., of citizens, and delivery of fugitives from justice, he says, "That these clauses are mere articles of compact between the States, dependent on the good faith of the States alone for their fulfillment, I suppose no one will dispute. They do not confer upon

Admitting that Congress had no power to pass the law, the question was still presented, Have the State courts power in any case to set at liberty persons in custody under judgment of a court of the U. S.? The decision of the Ohio court may have been proper, on the ground that they have no such power, and that the only remedy was in an appeal from the District Court to the Circuit Court, and to the Supreme Court of the U. S. But the judges did not so view their position. Judge Sutliff (p. 229) says, "We all agree that if the Act of Congress, under which the relators have been convicted, is unconstitutional, their imprisonment is illegal, and they ought to be discharged." The same doctrine was held in re Booth and Rycraft. See particularly Ch. J. Whiton's note, 3 Wisc. 176, 177. In this Judge Crawford concurred. In the earlier part of this work (Vol. 1, p. 493-495) it was argued that State courts may inquire into the validity of a custody by administrative or ministerial officers under color of the authority of the U. S. But it was not intended to affirm that they would not be bound to recognize the custody if under the judgment of a court holding the judicial power of the U. S, even when in the judgment of the State court the subject-matter is not within the judicial power of the U. S.

Congress any power whatsoever to enforce their observance." The judge then argues the want of power from the express grant of power, in respect to proof of acts, &c., in the first section. He urges that these provisions are substitutes for similar clauses in the Articles of Confederation which "contained nothing but articles of compact," and in the "articles of compact" of the ordinance of 1787. "I conclude," he says (ib. 226), “ therefore, that the States are bound, in fulfillment of their plighted faith, and through the medium of their laws," &c. "But the federal government has nothing to do with the subject, and its interference is sheer usurpation of a power not granted, but reserved." Judge Brinkerhoff is therefore a supporter of the first construction of the provision.

§ 779. Judge Sutliff discusses the question of the power of Congress, in an Opinion occupying nearly one hundred pages of the report, affirming the power to be with the States exclusively, according to the first construction. The introductory part of his argument (ib. 231-237) accords with that of Judge Brinkerhoff. The part of Judge Sutliff's Opinion must be noted' wherein he states what he supposes to be the received

29 Ohio, 243. "In the absence of any special provision authorizing Congress to legislate, it is claimed that Congress has become invested with power to legislate by virtue of three distinct provisions of the Constitution. The provision in Art. 4, it is said, makes it a duty of the States respectively to surrender the fugitive; and sec. 2 of Art. 3, extends the judicial power to all cases arising under the Constitution and laws of the U. S.; and the concluding clause of sec. 8, Art. 1, authorizes Congress to make the necessary laws for carrying the judicial power into execution. And under these three provisions, it has been suggested that Congress may have derived power to legislate for the rendition of fugitives. The argument may be simply stated thus: Congress has the power, under the last clause of sec. 8, Art. 1, to pass proper laws for the organization of the judiciary, and for the execution of its judicial powers. The rendition of a fugitive is provided for under the Constitution. Therefore, power of the judiciary should extend to that provision; and therefore Congress may legislate to carry into execution, in that regard, the judicial power. Now unless the premises of this fair statement of the argument be true, and unless the minor proposition of the premises be included in the major, the reasoning is fallacious and the conclusion false. But the minor proposition is not included in the major, and therefore the premises are not true. The judicial power is only extended to all cases arising under the Constitution and laws of the United States, &c., while the provision' that no person held,' &c., is not a case. It is a compact or stipulation, it is a duty; but it is not even a stipulation or duty on the part of the federal government, but upon the States merely. It cannot, then, with propriety, be affirmed that Congress has any more power for the performance of the duty of delivering up fugitives, than for the performance of any other duty of the States under the Constitution. For while Congress has the power to pass or make all laws necessary and proper for carrying into execution the powers of the judiciary, it must be remembered that the powers of the judi