Another opinion exists, which is thus expressed by the late and lamented Justice Story: "The object of this clause was, 'to secure to the citizens of the slave-holding states the complete right and title of ownership in their slaves as property in every state in the Union, into which they might escape from the state where they were held in servitude."" If this opinion be adopted, the very shadow of analogy between the two constitutional powers will vanish. For, by the general law of nations, none is bound to recognize the state of slavery as to foreign slaves, found within its territorial dominions, when it is in opposition to its own policy and institutions, in favor of the subjects of other nations, where slavery is recognized. There is not now, and never was, any such comity of nations, as dictated compacts for the surrender of fugitive slaves. No Christian nation would ever make such a compact. Every state has denied an obligation to surrender persons claimed to be slaves. It was truly said, by the distinguished judge last mentioned, that "if the Constitution had not contained the clause now under consideration, every non-slaveholding state in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire imunity, and protection against the claims of their masters." Therefore the clause is an abridgment of state sovereignty-it conflicts with the principles of natural and civil liberty, and contrasts, at least, strongly with the rights and privileges guaranteed to the citizens of all the states by the Constitution. It is, therefore, to be strictly construed. If strictly construed, the clause spends its whole force, in an inhibition of laws and regulations calculated, in one state, to work a discharge of fugitives held to labor in other states, by the laws thereof, and neither needs, nor contemplates, legislation by Congress, but relies, for its execution, upon the judicial authorities of the states and of the Union.

This argument derives much force, from the fact, that the Constitution does not, among its express powers, authorize Congress to enact laws concerning the arrest of fugitives from labor. Such a power is omitted from the long catalogue of legislative powers. We have read, with profound respect, the opinions of this Court, delivered in the case of Prigg vs. Pennsylvania, in which it was argued that Congress might exercise the power manifested in the act of 1793, from a supposed analogy to many cases in which the National Legislature necessarily exercises inferential

legislative authority, to carry into effect, constitutional provisions. But this reasoning fails to satisfy us, because it seems to us that in the first place, the necessity of legislation, under this claim of the Constitution, is violently inferred, and then another violence is committed by inferring an implied power.

The work of usurpation once begun, derives strength from precedent, and fearful force from judicial acquiescence. Thus it has happened in regard to the claim under consideration. The very structure of the provision shows that it was designed merely to limit and restrict the legislative power of the states, not to deprive them of all power to legislate concerning fugitives from slavery. No person held to labor by the laws of one state, and escaping into another, shall be discharged in consequence of any law or regulation of that state. This language plainly implies that any state may pass what laws, and establish what regulations it may deem expedient, and those laws will be valid and effectual, save only in one respect, namely, that no person shall, in consequence thereof, be discharged from labor or service due, in another state, by the laws thereof. It was so understood throughout the Union. Accordingly, at a very early period, every state, or almost every state, enacted laws regulating the proceedings on the claim of fugitives, in harmony, as was believed, with the constitutional provisions. But after a lapse of fifty years, and after acquiescence during that period by nearly all the states in this system of legislation, it was decided in the case of Prigg vs. Pennsylvania, that the restriction of state legislative power was an absolute inhibition of its exercise. With the most profound deference, we submit that the error of that adjudication need not be exposed by argument, but is apparent, and rendered palpable, by bringing the Constitution and the adjudication into simple juxtaposition and contrast.

His Honor, Mr. Justice Story, in the case last mentioned, gave an analysis of the constitutional provision, to show, that legislation was contemplated to carry it fully into effect, and to prevent its abuse. But this process seems to lead, inevitably, to the opposite conclusion. The learned judge assumed, that the delivery of the fugitive slave to the claimant, was the principal object and design of the provision, and all else that it contained was merely incidental. On the contrary, the most cursory reading of the pro

*16 Peters, 640.

vision would discover that the restrictions upon the legislative power of the states, or to speak still more accurately, the restraint upon the courts of justice, in cases and proceedings, concerning the claims of fugitives from labor, was the principal object and design, and that the delivery of the fugitive was purely an incident or consequence. The provision refers neither to Congress, nor to state legislatures, directs no action by them, nor designates any possible occasion for their action. Looking over, and beyond them, to the courts of justice, the Constitution brings before us a case, where a person, who has been proved to be held to labor, in one state, is claimed in another, and pleads that the state, in which the trial is held, has made some law, or established some regulation, in consequence of which, he is discharged from his obligation in the state from whence he escaped. In such a case the Constitution commands the court to disallow that plea, and to disregard that statute and regulation so completely, that the fugitive may, by process of execution, or otherwise, be delivered to the claimant. Surely all this would be a simple proceeding. If the Constitution has given no details, it is because no details for such a proceeding were necessary. The framers of the Constitution knew that there could not be such proceedings, unless there were a court, a claimant, a defender, a plea, proof, judgment and execution; and that all these would be essential, in the administration of justice, and would be found existing in the administration of justice, in every state which should come into the confederacy.

The reasoning which has been pursued has brought us, at length, upon the ground on which this court has taken a firm position. The court said in the opinion delivered by Mr. Justice Story, so often cited, in page 613:

"We have not the slightest hesitation in holding, that under and in virtue of the Constitution, the owner of a slave, is clothed with entire authority, in every state in the Union to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence. In this sense, and to this extent, this clause of the Constitution, may be properly said to execute itself, and to require no aid from legisla tion, state or national."

If then the Constitution, proprio vigore executes itself, in cases of claim, without legal process; and if in cases of legal process, the Constitution, being the paramount law of the land, and, therefore, conclusively binding upon all courts, state and national, can execute itself through those courts, without legislation, and in despite of such legislation, the law of 1793 is as void as any legislation by the several states would be.

Our adversaries, however, seek to escape from this dilemma, by maintaining that legislative power is necessary, to secure the delivery of the fugitive by legal process. Their case is stated by Judge Story, as follows:-(p. 613.)

"But the clause of the Constitution does not stop here. Many cases must arise, in which, if the remedy of the owner were confined to the mere right of seizure and recaption, he would be utterly without any adequate redress. He may not be able to lay hands upon the slave. He may not be able to enforce his rights against persons who either secrete or conceal. He may be restricted by local legislation, as to the modes of proof as to his ownership as to the courts in which he shall sue—and as to the actions which he shall bring. Nay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem, or no specific mode of repossessing the slave; or the state legislation may be entirely silent on the whole subject; or such as to deny jurisdiction over cases which its own policy or institutions prohibit or discountenance."

We would not be irreverent, but we must submit that this reasoning is fallacious. What right does the Constitution give to any party, as an owner of a slave as property? No such character, and no such property are named, or described, or recognized in this Constitution. In a case of latent ambiguity, we may resort to extraneous helps to construe contracts, compacts, and even constitutions. Volumes have been written to prove that slavery, the relations of master and slave, and of owner and slave, existed in the country when the Constitution was adopted, and that, therefore, this constitutional provision is to be deemed and taken as a recognition of slavery, of those well known relations, and of those anomalous incidents. The more clear the facts thus presented, the more conclusively are we entitled to deny the conclusion insisted upon. For, words are used in making laws and constitutions, to mean what they express, not what they do not express. The framers of the Constitution, who knew all these facts, instead of employing language well known and commonly used, to describe slavery, slaves, and slave-holders, masters and slaves, goods and chattels, and owners and ownership, studiously and carefully excluded them all. Instead of any such terms as would imply an acknowledgment of the law of slavery, and its incidents, they described those who were the subjects of the provision in question, not as chattels or property, of any kind, but as persons and as men, and not as persons who were slaves, but as persons who were held to labor by lawful obligations. Those who were described as claimants, were not slave-holders, or owners, or even masters, but they, like the subjects of their claims, were persons, they were persons who had a lawful title to the services of those whom they

pursued. And the Constitution in every part and portion of it, fastidiously rejects all recognition of slaves and slavery.

We ask then, in the words of Judge Story, how are we to interpret the language of the clause? We borrow from him the reply. "The true answer is, in such a manner as consistently with the words, shall fully and completely effect the whole objects of it." Less than this would render the protection given by the provision, "shadowy and unsubstantial." More would convert it into an engine of oppression and slavery. And now, with what truth can it be said, as this court has said by that opinion, that the provision contains a positive and unqualified recognition of property of the owner in the slave? Mr. Madison, and all others, bear testimony, that the convention, sagaciously, intentionally, and solemnly, refused to recognize slavery, or the right of property in persons, and employed the phraseology so often quoted, for the very purpose of excluding any construction in favor of slavery. How is it, then, that after a lapse of some sixty years, it is now held that the object of the clause was, to secure to the citizens of the slave-holding states the complete right and title of ownership in their slaves, as property." I humbly ask this court to reconsider the principles thus promulgated, to disclaim a construction that makes the Constitution recognize and sanction slavery, and to restore it to its simplicity as a compact, that one state shall not discharge, by legislation, persons escaping from another state in which they are held to labor. It is vain, or soon will be, for even this court to require us to read the word "slave" for "person held to labor;" the word "property" for "obligation by law;" and the words "slave-holder" and "owner," for "claimant." Let the ancient reading prevail, and all the difficulties which the court have heretofore found will immediately disappear. Then, we shall no longer be told, as in the case of Prigg vs. Pennsylvania, that "the owner would be utterly without any adequate redress, if his remedy were confined to mere seizure and recaption." For nothing but that right is given to the "claimant" by the Constitution, except a declaration that it shall not be impaired by state legislation. Then we shall not be told that "the owner may not be able to lay his hand upon his slave as his pro perty." For then there will be no slave and no property to lay hand upon. There will be a person claimed and a claimant, as there is a debtor and a creditor, a plaintiff and a defendant, in VOL. 1-33.