Chief Justice Hornblower's Opinion is not altogether extrajudicial. That portion of the Opinion in which his construction is set forth, is given in the note. It will be seen that he maintains the first of the constructions herein before enumerated.

§ 746. In the matter of Peter, alias Lewis Martin, about the year 1837, 2 Paine's C. C. R. 348, Judge Thompson said, ib. 354: -"But it is said that Congress has no power to legislate at all upon this subject, there being no express delegation of such power in the Constitution. The provision is," &c. "This provision contains a prohibition to the States to pass any law discharging the persons escaping from the labor or service which he owes to another; and all such laws would be null and void, and no positive legislation might be necessary on the subject. But to secure the benefit of the latter part of the

all, even in the District and Territories over which it has exclusive jurisdiction, is denied, and surely, by such, it will not be insisted that Congress has a constructive right to prescribe the manner in which persons residing in the free States shall be arrested, imprisoned, delivered up, and transferred from one State to another, simply because they are claimed as slaves.

"In short, if the power of legislation upon this subject is not given to Congress in the 2d section of the 4th Article of the Constitution, it cannot, I think, be found in that instrument. The last clause of the 8th section of the 1st Article gives to Congress a right to make all laws which shall be necessary and proper for carrying into execution all the powers vested by the Constitution in the Government of the United States, or in any department or office thereof. But the provisions of the 2d section of the 4th Article of the Constitution covers no grant to, confides no trust, and vests no powers in the Government of the United States. The language of the whole office of that section is to establish certain principles and rules of action by which the contracting parties are to be governed in certain specified cases. The stipulations respecting the rights of citizenship, and the delivery of persons fleeing from justice, or escaping from bondage, are not grants of power to the general Government, to be executed by it, in derogation of State anthority; but they are in the nature of treaty stipulations, resting, for their fulfillment, upon the enlightened patriotism and good faith of the several States.

"The argument in favor of Congressional legislation, founded on the suggestion that some of the States might refuse a compliance with these constitutional provisions, or neglect to pass any laws to carry them into effect, is entitled to no weight. Such refusal would amount to a violation of the national compact, and is not to be presumed or anticipated. The same argument carried out in its results would invest the general Government with almost unlimited power, and extend its constructive rights far beyond anything that has ever been contended for. The American people would not long submit to a course of legislation by Congress founded on no better authority than the unjust assumption that the States, if left to themselves, would not in good faith carry into effect the provisions of the Constitution.

"But, as I have said before, it is not my intention to express any definite opinion on the validity of the Act of Congress, nor is it necessary to do in this case, as the proceeding in question has not been in conformity with the provisions of this Act, but in pursuance with the law of this State."

provision, some legislation on the subject either by Congress or by the States is indispensable. It declares that the party escaping shall be delivered up to the party to whom he owes labor and service; but the mode and manner in which this is to be done and enforced must be provided for by law; the Constitution makes no provision on that subject, and it cannot be presumed that it was intended to leave this to State legislation. There is no express injunction upon the States to pass any laws on the subject, and unless they choose to do it, the great benefit intended to be secured to slaveholders would be entirely defeated. We know, historically, that this was a subject that created great difficulty in the formation of the Constitution, and that it resulted in a compromise not entirely satisfactory to a portion of the United States. But whatever our private opinions on the subject of slavery may be, we are bound in good faith to carry into execution the constitutional provisions in relation to it; and it would be an extravagant construction of this provision in the Constitution to suppose it to be left discretionary in the States to comply with it or not, as they should think proper.'

8747. The well-known case of Prigg v. The Commonwealth of Pennsylvania (1842), 16 Peters, 539, commonly called Prigg's case, is the leading authority on the construction of this clause, and the basis of the power of Congress. The point actually before the Court was, whether the law of Pennsylvania, of the 26th of March, 1826, sec. 1, was in violation of the Constitution of the United States, and, on the whole, it would appear that the Court decided that the State law was unconstitutional without reference to the law of Congress, and simply with reference to the existence of the constitutional provision. If the Court were right in taking this posi

The case, Dixon v. Allender, in the Supreme Court of New York, Angust, 1837, 18 Wendell, 678, presents a question of practice. No judgment involving a decision on the validity of the law of Congress or the State law appears to have been pronounced.

In 3 Wisc. 115, Smith, J., commenting on this case, said:-"The majority of the Court decided that the clause gave the owner of a fugitive slave the right to seize him in any State of the Union, without process, and take him back to the State from which he escaped, and that the law of Pennsylvania which interfered with such right was repugnant to the clause itself, and therefore void. This was the point in judgment. This was the legal scope of the decision, and no more."

tion, the question of the constitutionality of the law of Congress could not, properly, be before the Court. But the co-ordinate question of the proper construction of the clause was necessarily passed upon. The questions considered by the Court were:-Has the owner, under the provision itself and irrespectively of the Act of Congress, an indefeasible right to seize his fugitive slave and remove him from the State?-Has the State any power to interfere with the owner in the exercise of that right, or any other power in reference to the right of such master and the obligation of the fugitive?-Has Congress power to legislate in respect to such right and obligation? -May the State magistrates mentioned in the Act of 1793 perform the functions in that Act designated?1

Although this is not the proper place in this treatise for considering all these questions, yet they are so intimately connected with the questions which in this chapter are to be examined, that the Opinion of the Court is given here in full, from 16 Peters, 608, as delivered by Mr. Justice Story.

8748. "This is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the judiciary act of 1789, ch. 20, for the purpose of revising the judgment of that Court, in a case involving the construction of the Constitution and laws of the United States.

"The facts are briefly these: The plaintiff in error was indicted, in the Court of Oyer and Terminer for York county, for having, with force and violence, taken and carried away from that county, to the State of Maryland, a certain negro

1 Mr. Johnson, Attorney-General and of Counsel for Pennsylvania (16 Peters', 591) stated the three points arising in the case, as follows:

"1. Is the power of prescribing the mode of delivering up fugitives from service or labor under the 2d section of the 4th Article of the Constitution exclusively vested in the national Government?

"2. If it is not, is it concurrently vested in the State and general Governments, to be exercised on particular terms? or is it solely vested in the State Governments?

"3. Have the States the right to inflict penalties, as in cases of crimes, upon those who seize and remove fugitive slaves out of their territory without pursuing the mode prescribed either by the Act of Congress of 1793, or by acts passed on the same subject by the States themselves?" He then says:-"The last of these three questions is the most material in the present case; perhaps it is the only real question in this case, upon which the Court is imperatively called to pronounce its judgment." And the same position is supported with great force, ib. 601, &c.

woman, named Margaret Morgan, with a design and intention of selling and disposing of, and keeping her as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826. That statute in the first section, in substance, provides, that if any person or persons shall, from and after the passing of the act, by force and violence take and carry away, or cause to be taken and carried away, and shall by fraud or false pretence seduce, or cause to be seduced, or shall attempt to take, carry away, or seduce any negro or mulatto from any part of that commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto as a slave or servant for life, or for any term whatsoever; every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars; and moreover, shall be sentenced to undergo a servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years; and shall be confined and kept to hard labor, &c. There are many other provisions in the statute which is recited at large in the record, but to which it is in our view unnecessary to advert upon the present occasion.

"The plaintiff in error pleaded not guilty to the indictment; and at the trial the jury found a special verdict, which, in substance, states, that the negro woman, Margaret Morgan, was a slave for life, and held to labor and service under and according to the [609] laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in error being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837, caused the said negro woman to be taken and apprehended as a fugitive from labor, by a State constable, under a warrant from a Pennsylvania magistrate; that the said negro woman was thereupon brought before the said magistrate, who refused to take further cognizance of the case; and thereupon the plaintiff in error did remove, take, and carry away the said negro woman and her

children out of Pennsylvania into Maryland, and did deliver the said negro woman and her children into the custody and possession of the said Margaret Ashmore. The special verdict further finds, that one of the children was born in Pennsylvania, more than a year after the said negro woman had fled and escaped from Maryland.

"Upon this special verdict, the Court of Oyer and Terminer of York county adjudged that the plaintiff in error was guilty of the offence charged in the indictment. A writ of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From this latter judgment, the present writ of error has been brought to this Court.

"Before proceeding to discuss the very important and interesting questions involved in this record, it is fit to say, that the cause has been conducted in the Court below and has been brought here, by the co-operation and sanction both of the State of Maryland and the State of Pennsylvania, in the most friendly and courteous spirit, with a view to have those questions finally disposed of by the adjudication of this Court; so that the agitations on this subject in both States, which have had a tendency to interrupt the harmony between them, may subside, and the conflict of opinion be put at rest. It should also be added, that the statute of Pennsylvania of 1826 was (as has been suggested at the bar) passed with a view of meeting the supposed wishes of Maryland on the subject of fugitive slaves; and that, although it has failed to produce the good effects intended in the practical construction, the result was unforeseen and undesigned.'

13 Wis. 112. Judge Smith, in Booth's case, says: "In the first place, it should be observed that the decision of the case [Prigg's case] by the State Supreme Court was pro forma merely. The responsibility of deciding upon the matter by the latter court was avoided, if my memory serves me, in conformity with a special act of the legislature of that State, and by common consent the United States Supreme Court was charged therewith. The question of jurisdiction was not raised at all. Jurisdiction was assumed and the case proceeded, in order to put to rest certain vexed and agitating questions; with what success time and experience have unfortunately shown. If that court had no jurisdiction, that fact alone would strip its decision of all claim to authority. However patriotic the motives which induced the one court to concede, and the other to assume jurisdiction, it is not improper perhaps to remark that one State has not the right to make a mere pro forma decision upon a given subject matter, for the pur