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nocently as well as designedly done, since every State is perfectly competent, and has the exclusive right to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases which its own policy and its own institutions either prohibit or discountenance.

"If, therefore, the clause of the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced in cases where it did not execute itself, it is plain that it would have, in a great variety of cases, a delusive and empty annunciation. If it did not contemplate any action either through State or national legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right, it would be left to the mere comity of the States to act as they should please, and would depend for its security upon the changing course of public opinion, the mutations of public policy, and the general adaptations of remedies for purposes strictly according to the lex fori."

§749. In the portion of the Opinion above cited the provisions had been regarded as private law, creating perfect legal rights and obligations of private persons, in accordance with the fourth construction. But in that which follows, Judge Story begins to favor either the second or the third construction, by speaking of a duty of delivery correlative to the claimant's right:

"And this leads us to the consideration of the other part of the clause, which implies at once a guaranty and duty. It says, 'But he (the slave) shall be delivered up on claim of the party to [615] whom such service or labor may be due.' Now, we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some farther remedial redress than that which might be administered at the hands of the owner himself. A claim is to be made. What is a claim? It is, in a just juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited, but at the same time an equally expressive, definition

VOL. II.--30

was given by Lord Dyer, as cited in Stowell v. Zouch, Plowden, 359; and it is equally applicable to the present case: that 'a claim is a challenge by a man of the propriety or ownership of a thing, which he has not in possession, but which is wrongfully detained from him.' The slave is to be delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When, and under what circumstances, shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled?

"These, and many other questions, will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave, If, indeed, the Constitution guarantees the right, and if it requires the delivery upon the claim of the owner, (as cannot well be doubted), the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be, that where the end is required the means are given; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any State. It does not point out any State functionaries, or any State action to carry its provisions into effect. The States cannot, therefore, be compelled to enforce them; and [616] it might well be deemed an unconstitutional exercise of the power of interpretation to insist that the States are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the Constitution. On the contrary, the natural, if not the necessary con

clusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties. imposed upon it by the Constitution. The remark of Mr. Madison, in the Federalist (No. 43), would seem in such cases to apply with peculiar force. 'A right (says he) implies a remedy; and where else would the remedy be deposited than where it is deposited by the Constitution?' meaning, as the context shows, in the government of the United States."

§ 750. It will be noticed that in the paragraph last quoted the judge does not designate the person on whom the Constitution has imposed the duty of delivery. By his inferring that "the national Government is clothed with appropriate authority and functions to enforce it," i. e., the delivery, it would seem that he supposed that the duty was imposed on some person other than that national Government. But after saying that "the States cannot be compelled to enforce them," i. e., the provisions of the clause, he argues that the States cannot be held "bound to provide means to carry into effect the duties of the national Government;" that "the Government is bound, through its own proper departments, to carry into effect all the rights and duties imposed upon it by the Constitution."

That Judge Story here conceived of the duty imposed as a duty of the national Government correlative to the claimant's right, and not a duty of the several State correlative to the owner's right, which duty and right the national Government was bound to enforce and maintain, appears from the next paragraph, which seems to be the key-stone of the whole Opinion :

"It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person; and inasmuch as the right is a right of property capable of being recognized and asserted by proceedings before a Court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy between the parties, and a case arising under the Constitution' of the United States; within the express dele

gation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to that right; and if so, then it may prescribe the mode and extent in which it shall be applied, and how, and under what circumstances the proceedings shall afford a complete protection and guaranty to the right."1

Judge Story does not here indicate this "other person," who, with the claimant-owner, is one of the "parties adverse to each other," in "a controversy between the parties, or in a case arising under the Constitution' of the United States within the express delegation of judicial power given by that instrument." But since he had, in the preceding paragraph, attributed the duty of delivery either to the State in which the fugitive is found, or to the national Government, he must have found this "other person" in one of these two.

It is possible that Judge Story may have thought that this controversy or case under the Constitution would not be a suit either in law or equity. But it seems very unlikely that he should have taken no notice of the thirteenth Amendment,' in this connection, if he had supposed a State of the United States to be the party defendant in this case or controversy. It might, from this alone, be inferred that Judge Story did not discover this "other person" in a State of the United States.*

'In James Scott's case, 1851, Judge Sprague, of the U. S. Dist. Court for Massachusetts, said, IV. Monthly Law R. p. 160:-"The remark made in the Opinion delivered in Prigg v. Pennsylvania, that a claim for a fugitive from labor was within the judicial power, was an obiter dictum, and can be reconciled with what was deliberately decided in the same case only by supposing that the judge who delivered the Opinion intended that Congress might legislate for it as within the judicial power, and provide for its being tried by a court, not that they must do so." If this was obiter dictum in the sense of being immaterial to the question actually before the court, so was that which Judge Sprague refers to as having been deliberately decided by it. For the constitutionality of the Act of Congress was not in question. If he calls it obiter dictum in the sense of not being reconcilable with other parts of the Opinion, that may be true, but it is no proof of its being less reasonable or correct. If inconsistent, it invalidates the reasoning of the whole Opinion and its juridical authority. But, so far from being obiter dictum, this passage is the key to the whole argument of Judge Story.

In which amendment it is declared:-"The judicial power of the United States shall not be construed to extend to any suit in law or equity commenced or prosecuted against one of the United States, by citizens, of another State, or by citizens or subjects of any foreign state."

It is very plain that Judge Story adopted, as the basis of his Opinion, the argument of Mr. Meredith, counsel in this case for the State of Maryland (Sutliff, J., 9 Ohio, 270). Mr. Meredith had based the power of Congress on the idea that

§ 751. Judge Story then declares that this theory had been adopted by Congress.

"Congress has taken this very view of the power and duty of the national government. As early as the year 1791, the attention of Congress was drawn to it (as we shall hereafter more fully see) in consequence of some practical difficulties arising under the other clause, respecting fugitives from justice escaping into other States. The result of their deliberations was the passage of the act of the 12th of February, 1793, ch. 51 (7), which," &c.

The judge here gives an abstract of the statute, and then, on page 617 of the report, says:

"In a general sense, this act may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice and fugitive slaves; that is, it covers both the subjects, in its enactments; not because it exhausts the remedies which may be applied by Congress to enforce the rights, if the provisions of the act shall, in practice, be found not to attain the object of the Constitution; but because it points out fully all the modes of attaining those objects, which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Constitution. If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all State legislation upon the same subject; and, by necessary implication, prohibit it. For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner, and in a certain form, it cannot [618] be that the State legislatures have a right to interfere; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxiliary provisions for the same purpose. In such a case, the legislation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to

a case, within the judicial power, arises under the provision (16 Peters, 568). But it does not appear that he regarded the national Government as the party against whom the claim is to be made. That idea may have been original with Judge Story.

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