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304, this Court say, 'The language of the Constitution is imperative on the States as to the performance of many duties. It is imperative on the State legislatures to make laws prescribing the time, place, and manner of holding elections for senators and representatives, and for electors of President and Vice-President. And in these, as [666] well as in other cases, Congress have a right to revise, amend, or supersede the laws which may be passed by the State legislatures.'

"Now, I do not insist on the exercise of the federal power to the extent as here laid down. I go no farther than to say, that where the Constitution imposes a positive duty on a State, or its officers, to surrender fugitives, that Congress may prescribe the mode of proof, and the duty of the State officers.

"This power may be resisted by a State, and there is no means of coercing it. In this view the power may be considered an important [sic] one. So the Supreme Court of a State may refuse to certify its record on a writ of error to the Supreme Court of the Union,' under the twenty-fifth section of the judiciary act. But resistance to a constitutional authority by any of the State functionaries, should not be anticipated; and if made, the federal government may rely upon its own agency in giving effect to the laws."

On the whole, Judge McLean seems to support the second construction as the basis of the legislation of Congress. He denies the concurrent power of the States, on the ground that they are the subjects of the rule of action which is to be enforced.

$760. The Opinion of Mr. Justice Daniel is to be especially noticed, in considering how far the opinions expressed in this case are extrajudicial. On page 650 of the report Judge Daniel says:

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Concurring entirely as I do with the majority of the Court in the conclusions they have reached, relative to the effect and validity of the statute of Pennsylvania, now under review, it is with unfeigned regret that I am constrained to dissent from

1 This occurred in the Wisconsin case, Ableman v. Booth; see post.

some of the principles and reasonings which that majority, in passing to our common conclusions, have believed themselves called on to affirm.

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[651] In judicial proceedings generally, that has been deemed a safe and prudent rule of action, which involves no rights, nor questions not necessary to be considered; but leaves these for adjudication where, and when, only they shall be presented directly and unavoidably, and when surrounded. with every circumstance which can best illustrate their character. If, in ordinary questions of private interest, this rule is recommended by considerations of prudence, and accuracy, and justice, it is surely much more to be observed, when the subject to which it is applicable is the great fundamental law of the confederacy, every clause and article of which affects the polity and the acts of States.

"Guided by the rule just mentioned, it seems to me that the regular action of the Court in this case is limited to an examination of the Pennsylvania statute, to a comparison of its provisions with the third clause of the fourth Article of the Constitution, and with the act of Congress, of 1793, with which the law of Pennsylvania is alleged to be in conflict; and that to accomplish these purposes a general definition or contrast of the powers of the State and federal governments was neither requisite nor proper. The majority of my brethren, in the conscientious discharge of their duty, have thought themselves bound to pursue a different course; and it is in their definition and distribution of State and federal powers, and in the modes and times they have assigned for the exercising those powers, that I find myself compelled to differ with them.

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* The paramount authority of this clause in the Constitution to guaranty to the owner the right of property in his slave, and the absolute nullity of any State power, directly or indirectly, openly or covertly, aimed to impair that right, or to obstruct its enjoyment, I admit, nay, insist upon to the fullest extent. I contend, moreover, that the act of 1793, made in aid of this clause of the Constitution, and for its enforcement, so far as it conforms to the Constitution is the supreme law to the States, [652] and cannot be contravened by

them without a violation of the Constitution. But the majority of my brethren, proceeding beyond these positions, assume the ground that the clause of the Constitution above quoted, as an affirmative power granted by the Constitution, is essentially an exclusive power in the federal Government; and, consequently, that any and every exercise of authority by the States at any time, though undeniably in aid of the guarantee thereby given, is absolutely null and void.

"Whilst I am free to admit the powers which are exclusive in the federal Government, some of them became so denominated by the express terms of the Constitution; some because they are prohibited by the States; and others because their existence, and much more their practical exertion by the two Governments, would be repugnant, and would neutralize, if they did not conflict with and destroy each other: I cannot regard the third clause of the fourth Article as falling either within the definition or meaning of an exclusive power. Such a power I consider as originally and absolutely, and at all times, incompatible with partition or association. It excludes everything but itself.”

Judge Daniel does not give any opinion on the constitutionality of the statute of 1793, a decision on that point not being material to the judgment. But he speaks of the provision as if it contained a grant of power to "the federal Government" (see p. 652), and only contends that it is not exclusive. By agreeing in the judgment of the court, Judge Daniel must have recognized the right to seize and remove the fugitive, independently of statute, and by this supported the fourth construction. There is nothing in the Opinion to indicate his acceptance of the second construction as a basis for the legislative power, except his speaking of the power conferred in the provision as being a power in "the federal Government." He may not, however, have intended to distinguish such a power in the Government from a power belonging to the judiciary department of that Government.

§ 761. Mr. Justice Baldwin was the only member of the court who did not admit the Act of Congress to be constitutional. The reporter says, p. 636:-" Mr. Justice Baldwin

concurred in reversing the judgment of the Supreme Court of Pennsylvania, on the ground that the act of the Legislature [of Pennsylvania] was unconstitutional; inasmuch as the slavery of the person removed was admitted, the removal could not be kidnapping. But he dissented from the principles laid down by the Court as the grounds of their opinion." Judge Wayne says, in his several Opinion (p. 637), "All the members of the Court, too, except my brother Baldwin, concur in the opinion the legislation by Congress to carry the provision into execution is constitutional; and he contends that the provision gives to the owners of fugitive slaves all the rights of seizure and removal which legislation could give; but he concurs in the opinion if legislation by Congress be necessary, that the right to legislate is exclusively in Congress.""

It appears that Judge Baldwin must have received the fourth construction exclusively.

§ 762. It appears that, of the seven' members of the court, five justices-Story, Wayne, Taney, Thompson, and McLean -affirmed the power of Congress to legislate. Mr. Justice Daniel refused to consider the question; and Mr. Justice Baldwin denied that the power belonged to Congress."

Of the five affirming the power of Congress, Judge Story must, from the whole of his Opinion, be taken to have supported the third construction. In this he appears to have been alone, if not supported therein by Judge Wayne, whose language, however, agrees best with the second construction. The second construction seems also to have been adopted by Judge McLean. In the Opinions of Chief Justice Taney and

1 In Sims' case, 7 Cushing, 308, Judge Shaw remarks that Judge Baldwin "had, however, previously expressed an opinion, on the circuit, that the act was constitutional, in the case of Johnson. Tompkins, Baldwin, C. C., 571.” But Judge Baldwin's decision in that case had nothing to do with the statute of Congress.

Judges Catron and McKinley are not mentioned in the report.

3 As to whether the decision of this question was material-if the unconstitutionality of the Pennsylvania statute was a direct consequence of the provisions of the Constitution, the validity of the act of Congress was immaterial. (See Sutliff, J., 9 Ohio, 263.) All the justices, with the exception of Judge McLean, held that the act of Pennsylvania was invalid, merely because conflicting with rights belonging to the plaintiff under the Constitution itself; and Judge McLean held that the States had no power to legislate, even in the absence of legislation by Congress.

Judge Thompson there is also much to favor the same construction, though these two members of the court may possibly have taken that view of the provision which is here called the fourth construction.

It will be remembered that all the justices, except Judge McLean, supported the right of seizure and removal by the claimant owner, as a consequence of their interpretation of the words "shall not be discharged from such service or labor," and therefore gave to that clause of the provision the effect of private law. But no member of the court, unless Judges Taney and Thompson may be so understood, seems to have taken the two clauses of the provision, together, as having the effect of private law, and as creating cases, within the judicial power, between the claimant and the alleged fugitive as the two parties therein. There is but little support, therefore, given by these Opinions to the fourth construction as the basis of the power of Congress."

It will hereafter be seen that this case has generally been understood as sustaining the second construction.

763. The case of Jones v. Van Zandt, in the United States Circuit, 1842-3, before Judge McLean, 2 McLean, 597, was an action for harboring and concealing, in Ohio, fugitive slaves belonging to the plaintiff, contrary to the provisions of the Act of Congress. Judge McLean affirms the constitutionality of the statute, but there is nothing in his charge to the jury, ib. p. 597, or in his Opinion, ib. p. 611, distinguishing the basis of the power of legislation. The power is considered as settled by the Opinion of the Supreme Court in Prigg's case. The same case having been carried up to the Supreme Court, 5 Howard 223, Mr. Justice Woodbury, in delivering the Opinion of the Court,' did not consider particularly the question of leg

11 Kent's Comm. 7th ed. p. 445, note, says that in this case it was "declared that the national Government, in the absence of all positive provisions to the contrary, was bound, through its proper department, legislative, executive, or judiciary, as the case might require, to carry into effect all the rights and duties imposed upon it by the Constitution." Here the case is understood as deciding that the duty imposed by the Constitution is, in the first instance, the duty of the national Government as a whole, according to one adaptation of the third construction-not a duty in the judiciary, according to Story's adaptation of that construction or according to the fourth, nor a duty of the States, according to the first and second.

Jones v. Van Zandt, 5 Howard (1846), p. 229:-"This court has already,

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