pable, it should receive a construction that will operate most effectually to accomplish the end consistently with the terms of it. This, we may reasonably infer, will be in accordance with the intent of the makers, and will regard with becoming respect the rights of those especially interested in its execution. Which power, then, was it intended should be charged with the duty of prescribing the mode in which this injunction of the Constitution should be carried into effect, and of enforcing its execution-the States or Congress? It is very clear, if left to the former, the great purpose of the provision might be defeated in spite of the Constitution. The States might omit any legislation on the subject, and thereby leave the owner without any known means by which to assert his rights." And on page 320 :-"I am satisfied, from an attentive perusal of the provision, that a fair interpretation of the terms in which it is expressed not only prohibits the States from legislation upon the question involving the owner's right to this species of labor, but that it is intended to give Congress the power to provide the delivering up of the slave." And on page 321:-"It is obvious that if Congress have not the power to prescribe the mode and manner of the 'delivering up,' and thereby provide the means of enforcing the execution of the rights secured by this provision, its solemn guaranty may be wholly disregarded in defiance of the Government. This power seems indispensable to enable it faithfully to discharge the obligation to the States and citizens interested. The subject itself, as well from its nature as from the persons alone interested in it, seems appropriately to belong to the national Government; it concerns rights held under the laws to be enforced within the jurisdiction of States other than those in which the citizens generally interested in them reside, and on a subject too well known deeply to affect the public mind, and in respect to which distinct and adverse interests and views had already appeared in the Union. It was therefore fit and

slaveholding State, is founded on a legal right, or for intimating that, in the absence of any provision in the Constitution, the legislation of a State in respect to fugitive slaves within its borders can be called "partial and unjust," when it refuses to recognize the claims of a pursuing master. The same confusion of ideas prevails in the argument of Judge Baldwin, already noted.

proper that the whole matter should be placed under the control of Congress, where the rights and interests of the different sections of the country liable to be influenced by local and peculiar causes would be regulated and enforced with an impartial regard to all."

This language would accord best with the opinion that the provision is not, in itself, private law determining rights and obligations of private persons in a legal relation, but that some legislation is necessary before it can have such effect.

Judge Nelson attributes power to Congress without saying clearly that it is part of the power granted, in the last clause of the eighth section of the first Article, "to carry into execution " a power vested by this Constitution in the Government of the United States, or in some "department or officer thereof." He makes no allusion to any power of the judiciary in such "case" or "controversy." But the judge plainly indicates the national Government as the person upon whom the provision imposes an obligation correlative to the claimant's right. He observes that "its "-the provision's—“ solemn guaranty may be wholly disregarded" (not saying by whom) "in defiance of the Government," meaning, apparently, the national Government, and says that power in Congress "to prescribe the mode and manner of the delivering up, and thereby provide the means of enforcing the execution of the rights secured by this provision" is "indispensable to enable it" (i.e., the Government) faithfully to discharge the obligation to the States and citizens interested." He further says that "the subject itself" "seems appropriately to belong to the national Government."

Judge Nelson may, on the whole, be taken to support that adaptation of the third construction under which the provision creates a relation of right and obligation between the claimant and the national Government, and under which a power is attributed to the integral Government, not to the judiciary de

Here appears the idea which also prevails in the portion of Judge Baldwin's opinion which is given in the note ante, p. 445, that the State from which the fugitive from labor escaped is a party having a right under this provision.

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partment, which may be the foundation of a power of legislation in Congress.'

§ 744. On hearing this case before the Court for the Correction of Errors, the judgment of the Supreme Court was affirmed. But it was affirmed solely on the ground that the plaintiff had by his pleas admitted that he was the slave of the defendant, and had escaped from her service, and that the defendant was therefore entitled to judgment in her favor, and the court expressly declined to pass upon the constitutionality of the law of Congress and of the statute of the State under which the action had been brought. Opinions were delivered on this occasion by only two members of the court, Senator Bishop and the Chancellor, Walworth. The Senator maintained the legislation of Congress.' He held that it was a carrying into

1 On p. 322, Judge Nelson says:-"The above view [meaning, apparently, view of the power of Congress] is in strict accordance with the decisions of this court upon the clause in question, so far as it has come under consideration, and also with those under the analogous provision respecting fugitives from justice," and refers to Glen v. Hodges, 9 Johns. 67, in which case, however, there was no opinion as to the basis of the legislative power of Congress. Nor does the question appear ever to have been discussed in New York, in any case of a fugitive from justice.

214 Wendell, 507 and note. For this reason the opinions of the Chancellor and Senator Bishop are here placed in a note as having been extra-judicial; though, if the court was right in its position, it would seem that Judge Nelson's opinion in the court below was, likewise, extra-judicial. If the Court for the Correction of Errors meant to affirm the right of the owner to a delivery of the slave, independently of the law of Congress and the State statute, they thereby construed the provision to operate as private law, and so supported the fourth construction.

His language, on p. 531 of the Report, is:-" In arriving at a conclusion upon these points, it becomes necessary to inquire what powers have been conferred upon Congress by the Constitution; and, if upon such inquiry it be found that the law of Congress in reference to fugitive slaves is recognized by the express or implied powers of the Constitution, whether the State law must yield to the law of Congress." After quoting the constitutional provision, Senator Bishop said, "The first Article, section eight, and last clause of the Constitution, authorizes Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof; not only giving to Congress certain powers there enumerated, but giving authority to legislate upon an infinite variety of subjects which the framers of the Constitution evidently anticipated would arise under it when the practical operation of the Government was more fully and completely developed. The doctrine laid down by the Federalist is, that the Constitution, in defining the power of Congress, evidently specified those which were matters of immediate and general interest, leav ing Congress to regulate other matters by law, as the exigency of the case might require. Upon the authority of the foregoing clauses of the Constitution, Congress passed a law," &c. It will be noticed that he refers to the Federalist as attributing powers of legislation, as to matters not specified, to Congress in the

execution of a power vested by the Constitution in the Government of the United States, or in some department or officer thereof. As he did not affirm that the power vested was a power in the national Government, nor say that the provision was a rule acting on that Government, or on States as its subjects, he may have intended a power vested in the judiciary to apply a rule of private law contained in this provision, and so have supported the fourth construction. His language necessarily indicates an adoption of either the third or the fourth.

The Opinion delivered by the Chancellor on this occasion has been generally misunderstood. He did not, as commonly misrepresented, maintain the first of the four constructions, nor view the provision as an international treaty to be fulfilled only by the several political action of the States into which fugitives might escape. He did not deny that Congress might legislate, if it should be necessary to secure to the owner the right guaranteed by the Constitution. His doctrine is, that the Act of Congress could not prevent a trial of the master's right before a jury, whenever an appeal should be made to the State judiciary against his claim to the person of an alleged fugitive. The main point of his Opinion was his assertion of concurrent State jurisdiction, and particularly of the validity of the State law under which the case had arisen. But in the present inquiry it is only necessary to refer to the Chancellor's opinion as indicating his construction of the provision.'

first instance; that is independently of the existence of some power in the national Government or some department or officer thereof. It would have been better had the Senator pointed out the passage in the Federalist in which he had discovered this doctrine.

'14 Wendell, 525, the Chancellor said: "I have looked in vain among the powers delegated to Congress by the Constitution, for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of [526] power, and it does not appear to be embraced in the general grant of incidental powers contained in the last clause of the Constitution relative to the powers of Congress. Const., Art. I., § 8, sub. 17. The law of the United States respecting fugitives from justice and fugitive slaves is not a law to carry into effect any of the powers expressly granted to Congress or any other power vested by the Constitution in the Government of the United States, or any department or officer thereof.' It appears to be a law to regulate the exercise of the rights secured to the individual States or the inhabitants thereof by the second section of the fourth Article of the Constitution; which section, like the ninth section of the first Article, merely imposes a restriction and a duty upon other States and individuals in relation to such rights, but vests no power in the federal Government, or any department or officer thereof, except the judicial power of declaring and en

It will be seen from the passages cited from his Opinion, that the Chancellor clearly supported the fourth construction, regarding the provision as continuing, independently of either State or national legislation, the relation of master and slave in the State into which the fugitive had escaped; so that the master might even lawfully seize and remove his slave from the State in which he should be found; though liable always to account to the State for such action by showing his title before its judicial tribunals under the forms of procedure prescribed by the local law. But the master's custody, on such

forcing the rights secured by the Constitution. The Act of February, 1793, conferring ministerial powers upon the State magistrates, and regulating the exercise of the powers of the State executive, is certainly not a law to carry into effect the judicial power of the United States, which power cannot be vested in State officers. If the provisions of the Constitution, as to fugitive slaves and fugitives from justice, could not be carried into effect without the actual legislation of Congress on the subject, perhaps a power of federal legislation might be implied from the Constitution itself; but no such power can be inferred from the mere fact that it may be more convenient that Congress should exercise the power, than that it should be exercised by the State Legislatures. In these cases of fugitive slaves and fugitives from justice, it is not certain that any legislation whatever is necessary, or was contemplated by the framers of the Constitution. The provision as to persons escaping from servitude in one State, into another, appears, by their journals, to have been adopted by a unanimous vote of the Convention. At that time the existence of involuntary servitude, or the relation of master and servant, was known and recognized by the laws of every State in the Union, except Massachusetts, and the legal right of recaption existed in all as part of the customary or common [527] law of the whole confederacy. On the other hand the common law writ of homine replegiando, for the purpose of trying the right of the master to the services of the slave, was well known to the law of the several States, and was in constant use for that purpose, except so far as it had been superseded by the more summary proceeding by habeas corpus, or by local legislation. The object of the framers of the Constitution, therefore, was not to provide a new mode by which the master might be enabled to recover the services of the fugitive slave, but merely to restrain the exercise of a power which the State Legislatures, respectively, would otherwise have possessed to deprive the master of such preexisting right of recaption. Under this provision of the constitution, even without any legislation on the subject, the right of the master to reclaim the fugitive slave is fully secured so as to give him a valid claim in damages against any one who interferes with the right" (citing Glen v. Hodges, 9 Johns. R. 67, as to the same effect). And on the same page:-"The judicial tribunals of the respective States are bound by their oaths to protect the master's constitutional right of recaption against any improper legislation, and against the unauthorized acts of individuals by which such right may be impaired; and the Supreme Court of the United States, as the tribunal of dernier resort on such a question, is possessed of ample powers to correct any erroneous decision which might be made against the right of the master." And on p. 528:-"The Constitution of the United States having secured to the master the right of recaption, it is, of course, a good defence to the present suit if it is admitted on the record that the plaintiff owed service or labor to the defendant in another State, and had escaped from such servitude without reference to the validity of the Act of Congress, or of any State Legislature on the subject."