opinions on the constitutionality of the Act of Congress may be thought extra-judicial. They are, however, not so in any greater degree than were those in Prigg's case, and since it is the earliest judicial opinion opposed in all points to the doctrines maintained by Judge Story and other judges in that case, an abstract of Judge Smith's two Opinions, which, of course, are in their principal features alike, will here be made, accompanied by citations of the passages bearing most directly on the question considered in this chapter.

In the first Opinion, the judge begins (pp. 7-19) by a preliminary statement of his position as a State judge called on to decide on the validity of a custody under the warrant of a United States Commissioner, distinguishing that custody from one under the authority of a judicial officer of the federal Government, and denying that there was in this instance any conflict of jurisdiction.' Next, on pp. 19-22, he examines into the sufficiency of the warrant, concluding that it was defective, and gives his view of the position of State judiciaries in reference to powers assumed by the national Government (pp. 22-25). He then proceeds to examine the question of the constitutionality of the law of Congress, on p. 25:

"The Constitution of the United States is a peculiar instrument, and it has brought into existence and operation a peculiar system of government. But little if any aid is furnished in its construction by analogy. It is not merely a grant of powers. It not only confers powers upon the federal government, but it [26] guarantees rights to the States and to the citi zens. It was not designed merely to provide a general government for all the States, but to provide security and protection for the States and people, who are parties to the compact by which it is created. Not only did it confer certain powers upon the general government, but it imposed solemn duties. upon the government thereby ereated, and upon the States who were its creators. More than this, it solemnly enjoined upon both the State and general government, the exercise of certain powers and duties, and the abstaining by each, from the exercise of powers and functions exclusively pertaining to the other.

"It is an instrument of grants and covenants. Somewhat like an indenture of conveyance, it contains not only grants of powers, but covenants for the faithful observance of the stipulations therein contained. It creates three distinct departments of government, the executive, legislative, and judicial, and grants to each, the powers which it was designed that they should respectively exercise; and those powers not granted or prohibited to the States, it especially reserved to the States and the people. In addition to this, the States, parties to the instrument, by it, solemnly and mutually engaged that they would do certain things, and that certain things should not be done either by the government of the Union or of the States. The language of the Constitution is so peculiar, that the distinction between power to be conferred upon the government about to be created, and covenants entered into between the parties, as States, is obvious at a glance. Congress may exercise all the legislative power granted in the Constitution, but no other, because all others are especially reserved to the States and to the people. [27] In the same article which grants the legislative powers to Congress, and enumerates and defines them, is contained also a prohibitory covenant or compact by which the States have agreed not to do certain things, which, before, as sovereignties, they had an undoubted right to do. 'No State shall grant letters of marque and reprisal, coin money, emit bills of credit, make anything but gold and silver coin a legal tender, pass any bills of attainder, ex post facto law, or any law impairing the obligation of contracts,' &c.

"Now suppose, in violation of this compact, any State should do any of the things herein prohibited. Is it pretended that Congress has the right to make such acts on the part of the officers of the State penal? or by legislation, call such offending State to account? exclude it from the Union? expel its representatives from their seats? arrest its executive, its legislators and judges, and imprison them? The acts of such State would be simply void; and it would be the duty of all courts, both Federal and State, so to declare them. They would afford no protection to any person or officer acting under them, not because Congress has any legislative power to

denounce or abrogate them, but because they are in violation of the fundamental law.

"So also, in the same section are contained sundry prohi bitions upon the United States, among which is the following: The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public service may require it.' Suppose, in a time of profound peace and quiet, the federal government should pass a law suspending the privileges of this writ, would the State governments have the power to call to account the federal officers who had violated the compact in this behalf? the Congress who passed, and the executive who approved it? Would the State courts be bound by it? Not at all. Such an act of Congress would simply be void, and it would be the duty of every State and Federal court so to pronounce it, and it would afford no protection to any officer, State or Federal, for refusing to obey such writ. I mention these illustrations to show that a great portion of our federal Constitution rests in compact, while still another rests in grant. Where powers are granted, they are to be exercised; where rights rest in compact, they have still the force of law; but the federal Government has no power to legislate upon them; they are to be obeyed and enforced by the parties to the compact, the States themselves."

The judge then sketches the history of the provision contained in the first section of the fourth Article, and describes the original proposal of a provision for the surrender of fugitive slaves, made in the Convention, August 28, 1787, as given in Madison Papers, 1447-8. On page 30 he then says:—

"This history is important, as it not only justifies and requires a distinction to be taken between grants of power and articles of compact, but it clearly demonstrates that the convention all along discriminated between grants of power to the Government, and articles of compact between the States, and was extremely jealous and cautious in making such grants, and only did so when it was deemed absolutely necessary.

66

Having now traced through this compact, and discovered the time and manner when it became coupled with a power,

let us trace along its neighbor, in regard to the reclaiming of fugitive slaves, and discover, if we can, the time and manner in which it shall be coupled with a grant of power to Congress, to secure its efficacy by legislation. We have seen that the first suggestion in regard to the subject was on the 28th day of August, when Mr. Pinckney and Mr. Butler moved to connect it with the surrender of fugitives from justice, but withdrew the proposition for the purpose of making a separate provision. On the 29th day of August, Mr. Butler offered such provision in these words:

"If any person bound to service or labor in any of the United States, shall escape into another State, he [31] or she shall not be discharged from such service or labor in consequence of any regulations subsisting in the State to which they escape, but shall be delivered up to the person justly claiming their service or labor.' Which was agreed to

nem con.'

"Here we have all the discussion upon the subject. Plan after plan for the organization of the government was made and presented, resolution upon resolution offered and discussed, embracing the whole ground of Federal and State rights and powers, without one word being mentioned of fugitive slaves; and when it did occur to the minds of some members, suggested, unquestionably, by the clause in regard to fugitives from justice, it is quietly agreed that the States would deliver up such fugitives from labor. No power was asked for the federal Government to seize them; no such power was dreamed of; the proposition that the States should respectively deliver them up, was acquiesced in without any dissent. Yet we are told arguendo by judicial authority, that without such a clause the Union could not have been formed, and that this provision was one of the essential compromises between the South and the North. In point of fact, it did not enter in the slightest degree into the compromises between the North and South. I have had time and opportunity to examine the debates in the conventions for the adoption of the Constitutions of only the States of North Carolina and

1 See ante, the notes on pp. 439, 445, 497, and Nelson, J., in his charge, October, 1852, 2 Blatchford, 561.

South Carolina. In the former, the whole of article four was read, and though the grants of power, as contradistinguished from mere compact, were scrutinized closely, no objection was made to the absence of such grant, but the article was acquiesced in with only a few words of explanation from Mr. Iredell, who [32] stated that the 'northern delegates, owing to their particular scruples on the subject of slavery, did not choose the word slave to be mentioned, but that was their meaning.' In the South Carolina convention, I have been unable to find a word of comment upon the subject. In Virginia, it was discussed by Messrs. Madison and Randolph, who never claimed for it the character of a power delegated to the national government. It is nowhere mentioned as entering into the compromises of the Constitution. How, then, can any one say, that without this provision the Union could not have been formed? And yet such assertion, contradicted by the truth of history, is made the pretext for the exercise of powers by the general government, that could not stand for a single moment upon a similar basis, in respect to any other subject matter.

"We have seen how the power of legislation was granted to Congress in respect to public records, &c. We have seen that no such power is granted in respect to the surrender of fugitives from labor, and that it was not even asked for; and from the known temper and scruples of the national convention, we may safely affirm, that had it been asked it would not have been granted, and had it been granted, no Union could have been formed upon such a basis. The history of the times fully justifies this conclusion. Can it be supposed for a moment, that had the framers of the Constitution imagined, that under this provision the federal government would assume to override the State authorities, appoint subordinate tribunals in every county in every State, invested with jurisdiction beyond the reach or inquiry of the State judiciary, to multiply executive and judicial officers ad infinitum, [33] wholly independent of, and irresponsible to the police regulations of the State, and that the whole army and navy of the Union could be sent into a State, without the request, and against the re