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the fugitive. Consequences like these show that [625] the nature and objects of the provision imperiously require, that, to make it effectual, it should be construed to be exclusive of State authority. We adopt the language of this Court in Sturgis v. Crowinshield, 4 Wheat. Rep. 193, and say, that it has never been supposed that the concurrent power of legislation extended to every possible case in which its exercise by the States has not been expressly prohibited. The confusion of such a practice would be endless.' And we know no ease in which the confusion and public inconvenience and mischiefs thereof could be more completely exemplified than the present.

"These are some of the reasons, but by no means all, upon which we hold the power of legislation on this subject to be exclusive in Congress.' To guard, however, against any possible misconstruction of our views, it is proper to state that we are by no means to be understood in any manner whatsoever to doubt or to interfere with the police power belonging to the States in virtue of their general sovereignty. That police power extends over all subjects within the territorial limits of the States, and has never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration, which is exclusively derived from and secured by the Constitution of the United States, and owes its whole efficacy thereto. We entertain no doubt whatsoever that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with, or regulated by such a course; and in many cases the operations of this police power, although designed essentially for other purposes, for the pro

It is very remarkable that "in all his extensive writings upon the Constitution Judge Story had never, either in the text, note, or index, even intimated that he supposed the States had ever delegated, or the federal Government acquired, any power to legislate for the rendition of fugitives from service." Sutliff, J., 9 Ohio, 274; and see ante, p. 461, note.

tection, safety, and peace of the State, may essentially promote and aid the interests of the owners. But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the Constitution of the United States, or with the remedies prescribed by Congress to aid and enforce the same."

This argument against the concurrent legislation of the States seems best to accord with the second construction of the constitutional provision. In substance this reasoning appears to be, that since the rule in the Constitution must be maintained by the national Government, in order that the rights which it guarantees may not depend on the several wills of States who are the subjects of the rule, it would be inconsistent to allow the States to share in the maintenance of those rights, even though the duty correlative to those rights is the duty of the several State, and though the obligation of the States to fulfill this duty is made the foundation of the power attributed to the national Government.'

If Judge Story had adhered to the idea that the clause imposed the duty of delivery upon the national Government, the argument against State legislation would have been much more simple. For it could hardly be pretended that the States should prescribe in what manner the national Government should perform its duties under the Constitution.

Judge Story proceeded to say, in concluding:

"Upon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded is unconstitutional [626] and void. It purports to punish as a public offence against that State the very act of seizing and removing a slave by his master, which the Constitution of the United States was designed to justify and uphold. The special verdict finds this fact, and the State Courts have rendered judgment against the plaintiff in error upon that verdict. That judgment must, therefore, be reversed, and the cause remanded

In supposing that the provision creates a duty for the States, and at the same time forbids their fulfilling it, there is an inconsistency which could not have escaped Judge Story. Perhaps it was the perception of this that led to his speaking, on p. 611, of the right of the owner as something which had a legal existence, as against the State, before the Constitution,

to the Supreme Court of Pennsylvania, with directions to carry into effect the judgment of this Court rendered upon the special verdict in favor of the plaintiff in error."

§ 754. There is some room to question whether Judge Story, throughout the whole of this Opinion, distinguished, in his own mind, the two theories for the legislation of Congress, one of which requires the second and the other the third or the fourth construction; whether he always recognized the power which was to be carried into effect by that legislation as an implied power in the national Government, to enforce a law binding the States as its subjects (the second construction), or as a power within the express judicial power of the United States in cases arising, under a law contained in the Constitution, between the private claimant, on the one hand, and the States or the national Government on the other (the third construction), or between the private claimant and the fugitive himself (according to the fourth construction). But his language on page 616 of the report will accord only with the doctrine included in the third construction. That theory is the only one which can be reconciled with all parts of his Opinion; and from his denial of legislative power in the States, as well as by inferences from the thirteenth Amendment, it is most reasonable to suppose that he regarded the case or controversy, thus within the judicial power, as one arising between the claimant owner and the national Government.

§ 755. It is doubtful whether even any one of Judge Story's associates agreed with him in his theory for the legislative power of Congress. In the judgment delivered in this case, all the members of the court then present, Chief Justice Taney, Justices Story, Thompson, Baldwin, Wayne, Daniel, and McLean, concurred. But the "Opinion of the Court" was in fact the Opinion of Justices Story and Wayne only. The other justices disagreed more or less with the principles advanced in it.' In seeking for authority on the question of con

1 16 Peters, 649, Judge Wayne says:-"Not a point has been decided in the cause now before this Court which has not been ruled in the courts of Massachusetts, New York, and Pennsylvania, and in other State courts. Judges have differed as to some of them, but the courts of the States have announced all of them with the consideration and solemnity of judicial conclusion. In cases, too, in

struction and of the power of Congress, the Opinion of each member of the court must be separately examined. With the exception of Judge Baldwin, the judges delivered Opinions severally; though at such length that they cannot be here inserted in full.

§ 756. Mr. Justice Wayne said, 16 Peters, 636 :-"I concur altogether in the Opinion of the Court as it has been given by my brother Story;" and of the remainder of his several Opinion (ib. 636–650), says (ib. 638):—" My object, and the only object which I have in view, in what I am about to say, is, to establish the position that Congress has the exclusive right to legislate upon this provision of the Constitution. I shall endeavor to prove it by the condition of the States when the Constitution was formed; by references to the provision itself; and to the Constitution generally.

"Let it be remembered, that the conventioners who formed the Constitution, were the representatives of equal sovereignties. That they were assembled to form a more perfect union than then existed between the States under the confederacy. That they co-operated to the same end; but that they were divided into two parties, having antagonist interests in respect to slavery.

"One of these parties, consisting of several States, required as a condition, upon which any constitution should be presented to the States for ratification, a full and perfect security for their slaves as property, when they fled into any of the States of the Union. The fact is not more plainly stated by me than it was put in the convention. The representatives from the non-slaveholding States assented to the condition."

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which the decisions were appropriate because the points were raised by the record." This statement is surely liable to some exception. In no previous case was it asserted that the claimant might seize and remove the alleged fugitive without regard either to the law or Congress, or the local law of the State forum; not even by Judge Baldwin in Johnson v. Tompkins, for there the question appears to have been regarded as solely determinable by the law of the State. Ante, 8742.

While indicating his adherence to the theory that the Constitution is a federal compact between the States, and not the act of the integral people of the United States, Judge Wayne distinguishes this provision as the federative act of two parties-the slaveholding and the non-slaveholding States (of that time, or those which should be such at the date of Prigg's case?) With as much propriety it might be said that the constituent parties were the States having western VOL. II-31

On p. 641, Judge Wayne speaks of "the rights and obligations of the States under the provision," and says:-"It is admitted, that the provision raises what is properly termed a perfect obligation upon all of the States to abstain from doing anything which may interfere with the rights secured. Will this be so, if any part of what may be necessary to discharge the obligation is reserved by each State, to be done as each may think proper? The obligation is common to all of them, to the same extent. Its object is to secure the property of some of the States, and the individual rights of their citizens in that property. Shall, then, each State be permitted to legislate in its own way, according to its own judgment, and their separate notions, in what manner the obligation shall be discharged to those States to which it is due? To permit some of the States to say to the others, how the property included in the provision was to be secured by legislation, without the assent of the latter, would certainly be, to destroy the equality and force of the guarantee, and the equality of the States by which it was made. That was [642] not anticipated by the representatives of the slaveholding States in the convention, nor could it have been intended by the framers of the Constitution.

"Is it not more reasonable to infer, as the States were forming a government for themselves, to the extent of the powers conceded in the Constitution, to which legislative power was given to make all laws necessary and proper to carry into execution all powers vested in it-that they meant that the right for which some of the States stipulated, and to which all acceded, should, from the peculiar nature of the property in which only some of the States were interested-be carried into execution by that department of the general government in which they were all to be represented, the Congress of the United States.

"But is not this power of legislation by the States, upon

lands and the States not having any, or the States which were to be principally enriched by agriculture and the States which were to be enriched by manufactures. The rights and obligations which correspond to such sectional divisions are only determined by political adjustments. Can the rights and obligations of private persons be judicially determined by such distinctions? Compare ante, §§ 504, 505, on the doctrine of equality of the States in respect to the Territories.

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