theory for the legislation of Congress. From the analysis of the cases herein given, it will be seen that there actually is no authority supporting such a theory. The judge's mistake is a new illustration of the obscuration of the whole subject by the Opinions in Prigg's case. The case supposed by Judge Story to be within the judicial power was a case in which the Government of the United States, not a State, was party defendant. This part of Judge Sutliff's argument is also important, as it may bear on that theory for the legislation of Congress which arises from the fourth construction. The greater portion of the Opinion is an elaborate discussion of the position that the question presented is res adjudicata, including a critical examination of the arguments judicially affirmed in Prigg's case (ib. 253-275). On the supposition that views of "polity" or political expediency may have influenced the court in that case, Judge Sutliff maintains, in a historical exposition (ib. 277, 278), that the "political propositions" assumed by the court are in conflict with the true doctrine of the distribution of sovereign power between the States and the national Government. He concludes that while "the number of legal opinions" may be for the constitutionality of the Acts of Congress, "the weight of authority," in the true sense of the word, is that Congress has not the power to legislate, but that it is with the States.

ciary only extend to 'cases under the laws of the U. S.,' &c., and that no laws can be passed by Congress except within the limits of its delegated powers. It therefore follows that the judicial power of the federal government, as to cases arising under the laws of the U. S., is only coextensive with the legislative power of the federal government, and therefore extends no further in regard to cases arising under the laws of the U. S. than the delegated powers of Congress to legislate. Therefore, if no power is delegated to Congress, independent of the judiciary clause, to legislate for the rendition of fugitives, inasmuch as the power of the judiciary is only coextensive with the power of Congress in that regard, it is certain that Congress has no power, under the grant of power to make laws to carry the judicial power into execution, to pass laws beyond the extent of the judicial powers; and which, as we have seen, do not extend to any legislation by Congress in relation to the rendition of fugitives, Congress having no power to legislate on that subject. But it is absurd to say that the Constitution ever contemplated a delegation of power by the States to Congress to legislate for the enforcement of duties devolved upon the States under the Constitution. Nor can it with any reason be pretended that Congress has power to legislate as to any duty of the States without conceding a like power to legislate for the enforcement of all duties of the States under the Constitution. If, then, Congress has power to legislate respecting the duty of the States to surrender fugitives, it has the power to enforce the duty of each State, whether slave or free, to extend all the privileges and immunities of citizens to the citizens of every other State, whether negroes, mulattoes, quadroons, or others, as well as whites. And it might with equal propriety," &c.

$780. In United States v. Buck, in the U. S. Dist. Court for the Eastern District of Pennsylvania, 1860, 8 Am. Law Reg. 540, the defendant had obstructed the Marshal holding a fugitive slave in his custody under a certificate under the law of 1850. Judge Cadwalader commenced his charge by saying:-"The government of the United States exists through a delegation of specifically defined powers, which the several States have yielded upon certain conditions. The rightful continuance of the government is dependent upon the faithful performance of these conditions." After mentioning the delivery of fugitives from justice and labor as among these conditions, he observes: "In legislating for the fulfillment of these two constitutional conditions, Congress has never assumed the power of disposing at pleasure of the custody of a fugitive of either kind. The Constitution would not have sanctioned any such arbitrary legislation." The judge does not otherwise explain the basis of the power of Congress, which power he fully sustains.

In the same charge, ib. 543, Judge Cadwalader affirms:— "The owner of a fugitive slave is not bound to proceed under either of these laws. He may follow the slave into the State into which he has escaped, and may without any legal process arrest him there; and may, without any judicial certificate, or other legal attestation of the right of removal, carry him back to the State from which he escaped. All this may be done lawfully. But if the owner does not, under one act or the other, obtain a certificate of his right of removal, he becomes liable as a trespasser, for the arrest, detention, and removal, unless he can prove the escape and that the fugitive owed him service or labor in the State from which he fled.”

In attributing this operation to the provision, independently of any legislation, the judge supports the fourth construc

tion.'

In many other cases maintaining the law of 1850, the power of Congress has been necessarily affirmed, without any particular examination of the basis of the power. The following are the principal authorities:-Henry Long's case, before Judson, J., U. S. Dist. C., 9 Legal Obs. 73, S. C., 3 Am. Law Journal, 294. The opinions in Sims' case, IV. Month. L. R., charges by Nelson, J., U. S. Cir. C.; 1 Blatchford's R. 635; 2 ib. 559; U. S. v. Reed, ib. 437, 469. Trial of Scott, U. S. Dist. C., before Sprague, J., IV. Month. L. R. 159. Case of John Davis before Conckling, J.,

VOL. II.-34

§781. There seems to be a very general impression that the doctrine implied in asserting the power of Congress is, that a power is given by the Constitution to the national Government, as distinguished from any department or officer thereof, and that Congress, legislating to carry into effect that power, is either enforcing the duties of the States or maintaining rights correlative to those duties.

But in the greater number of cases, later than Prigg's case, in which this view may have been sustained, the courts appear to have understood Story and the majority of his associates as sustaining this construction, and they appear to have relied mainly on the authority of the Opinion of the court in that case as they understood it.

If, then, Story's real doctrine in that case has been correctly distinguished in the preceding pages and has been misapprehended in these later cases, the supposed bulk of opinion in favor of this construction is for the greater part imaginary.

On the other hand, if that adaptation of the third construction under which Congress legislates to carry into effect a power of the judiciary department, in cases between the claimant and the national Government, was that which was adopted by Judge Story and a majority of the court, it has not been supported by the later cases, and stands not only alone, but in antagonism to the received theory; and it is very doubtful whether a majority of Judge Story's associates, or even any one other member of the court, agreed with him in this construction.

Judge Hornblower, in the New Jersey case, Judge Smith, in the Wisconsin cases, and Judges Brinkerhoff and Sutliff, in the Ohio case, appear to have supported the first construction. This is the view generally taken by those who deny entirely the power of Congress to legislate on the subject. Chancellor Walworth has been often quoted as sustaining the same doc

U. S. Dist. C.; ib. 301; U. S. v. Hanway, U. S. Cir. C., before Grier, J., 2 Wallace, Jr., 139. The proceedings in Jerry's case, at Syracuse, N. Y.; Henry e. Lowell, 16 Barbour, 269; Fisher's case, before Kane, J., U. S. Dist. C., IV. Month. L. R. 394; Ex parte Jenkins, 2 Wallace, Jr., 521; Van Metre v. Mitchell, and Oliver v. Weakley, ib. 311, 324; Van Orden's case, VI. Month. L. R. 295; Anthony Burns' case, before Commissioner Loring, VII. Month. L. R. 181; Ez parte Robinson, 6 McLean, 355.

trine, though his opinion really agrees best with the fourth construction.'

782. The action of the Commissioners of the United States Circuit Courts, under the law of 1850, has always been justified on the admission that they could not be invested with the judicial power of the United States. The opinions of gentlemen holding this office cannot therefore be cited as judicial authority, though their intrinsic merits may entitle them to high consideration among other juristical arguments."

§ 783. The opinions of the gentlemen holding the office of Attorney-General of the United States may be thought to have an authority superior to that of private jurists. The President of the United States, before signing the bill of 1850, had requested of Mr. Crittenden, Atty.-Gen., his opinion on the constitutionality of the sixth section of the Act, and particularly whether the last clause was in conflict with the constitutional guarantee of the writ of habeas corpus. In this opinion, dated Sept. 18, 1850, Mr. Crittenden rests the power of Congress on the decision in Prigg's case.'

§ 784. The writers more particularly known as commentators on the Constitution have not given any remarkable attention to these provisions.*

A view very nearly coinciding with Chancellor Walworth's may be found in A short reading on a short clause in the Constitution of the United States, VII. Monthly Law Rep. 316 (October, 1854). The anonymous contributor supports the fourth construction of the provision, making it applicable by the judiciary and maintaining the doctrine of seizure. He denies any power in Congress to legis

late.

2 In Sims' case, Mr. Commissioner Curtis based the power of Congress on that adaptation of the third construction which was Judge Story's in Prigg's case, according to which the claim is against the national Government, and thereby a case arises within the judicial power. IV. Month. L. R. 6. The report will be given hereinafter among the authorities on the question, whether the judicial power of the United States has, by the Act of 1850, been conferred on the Commissioners. Mr. Loring's decision, in Burns' case, will also be noted in that connection; it has no bearing on this question of construction.

5 Opinion of Atty.-Gen. 254. His statement of the doctrine of that case is as follows:-"It is well known, and admitted historically and judicially, that this clause of the Constitution was made for the purpose of securing to the citizens of the slaveholding States the complete ownership in their slaves as property in any and every State or Territory of the Union into which they might escape (16 Peters, 539). It devolved on the general government as a solemn duty to make that security effectual. * Thus the whole power, and with it the whole duty of carrying into effect this important provision of the Constitution was with Congress."

'N. Y. Legal Obs. IX. 10:-"This section [the second of the fourth Art.] has received only sparing attention from writers on the Constitution. It. seems to

§785. In the Senate of the United States, Mr. Clay' bore a principal part in the enactment of the so-called Compromise Measures of 1850, though the fugitive-slave law was not framed by him, nor did he vote on it. His observations on the nature and operation of the provision are hardly reconcila

have been carefully avoided by all publicists whose works we have consulted. Kent, Story, and others, it would seem, when commenting on the Constitution, might have given the questio vexata of the United States government an examination commensurate with its importance. These great luminaries of the law owed it to the American people. This they have not done."

Mr. Clay, on the 29th of January, 1850, submitted in the Senate his "Compromise Resolutions," of which the 7th was, That more effectual provision ought to be made by law, according to the requirements of the Constitution, for the restitution and delivery of persons bound to service or labor in any State, who may escape into any other State or Territory of this Union;" and in a speech on these resolutions, Feb. 5 and 6, 1850, said:-"On that subject, I go with him who goes farthest in the interpretation of that clause in the Constitution. In my humble opinion, it is a requirement by the Constitution of the United States, which is not limited in its operation to the Congress of the United States, but extends to every State in the Union; and I go one step farther: it extends to every man in the Union, and devolves upon them all an obligation to assist in the recovery of a fugitive from labor who takes refuge in or escapes into one of the free States. And, Sir, I think I can maintain all this by a fair interpretation of the Constitution: it provides, &c. It will be observed that this clause in the Constitution is not among the enumerated powers granted to Congress, for, if it had been the case, it might have been urged that Congress alone could legislate to carry it into effect; but it is one of the general powers, or one of the general rights secured by this constitutional instrument, and it addresses itself to all who are bound by the Constitution of the United States. Now, Sir, the officers of the general Government are bound to take an oath to support the Constitution of the United States. All State officers are required by the Constitution to take an oath to support the Constitution of the United States; and all men who love their country, and are obedient to its laws, are bound to assist in the execution of those laws, whether they are fundamental or derivative. I do not say that a private individual is bound to make the tour of his State in order to assist an owner of a slave to recover his property; but I do say, if he is present when the owner of a slave is about to assert his rights and endeavor to obtain possession of his property, every man present, whether he be an officer of the general or the State Government, or a private individual, is bound to assist, if men are bound at all to assist in the execution of the laws of their country."

Then, after a reference to the provision for fugitives from justice, Mr. Clay said: "It imposes an obligation upon all the States, free or slaveholding; it imposes an obligation upon all officers of the government, State or Federal; and I will add, upon all the people of the United States, under particular circumstances, to assist in the surrender and recovery of a fugitive slave from his master."

The Act of 1850 was framed by Mr. Mason, of Virginia. Mr. Clay, it is said, thought the law objectionable in shape; but in the Senate, in a speech on the violations of the law, Feb. 21 and 24, 1851, 2 Speeches of H. Clay, 608, sustaining it, said, ib., p. 620:-" But, what is this Constitution? It makes a government. It is an aggregate of powers vested in the government-some of them enumerated, others, from the imperfection of human nature and human language, are not specified, but are incidents to powers granted." Then, quoting the concluding clause of the eighth section of the 1st Art.:-"I hold that when it is said a thing shall be done, and when a government is created to put this Constitution into operation, and no other functionary or no other government by the United States is referred to, the duty of enforcing the particular power, the duty of carrying into effect the