monstrance of the legislature thereof; nay, even that under its operation the efficacy of the writ of Habeas Corpus could be destroyed, if the privileges thereof were not wholly sus pended; if the members of the convention had dreamed that they were incorporating such a power into the Constitution, does any one believe that it would have been adopted without opposition and without debate? And if these results had suggested themselves to the States on its adoption, would it have been passed by them, sub silentio, jealous as they were of State rights and State sovereignty? The idea is preposterous. The Union would never have been formed upon such a basis. It is an impeachment of historic truth, to assert it.

"The clause in regard to public records forms one section by itself, with its grant of power added upon full consideration. The second section of the same article contains three clauses, but all grouped and numbered together."

The judge recites the three clauses, and, on p. 34, says:"Here is the whole of the section, without one word of grant, or one word from which a grant may be inferred or implied. Congress has the same power to legislate in regard to fugitives from justice or labor. But it may be asked, how are the rights here stipulated and guaranteed, to be enforced? I answer, that every State officer, executive, legislative, and judicial, who takes an oath to support the Constitution of the United States, is bound to provide for, and aid in their enforcement, according to the true intent and meaning of the Constitution. But what if one or more States should refuse to perform their duty, and its officers violate their oaths and repudiate the compact? This question is answered by asking another What if Congress should declare a single violation of one of its laws, treason, and that a conviction thereof should work corruption of blood and forfeiture of estate beyond the life of the person attainted, and the judicial department should pronounce it valid, and the executive attempt to enforce it? The simple answer is, that when the State and federal officers become so regardless of their oaths and obligations as either question implies, anarchy or revolution, or both, must supervene, for the government would be a willful departure from

the fundamental law of its organization, and the people would be absolved from their allegiance to it. I do not mean to say that every minor, or unintentional departure from the Constitution must work such disastrous results. On the part of the States and the people there is a fixed attachment to the Constitution, [35] and when its provisions are violated or its restraints overleaped, discussion ensues, and the government is brought back to the constitutional tack; but I repudiate the degrading insinuation that State officers are less faithful to the Constitution than federal officers. On the contrary, from the very fact that upon them is devolved the duty and responsibility of guarding the rights and sovereignty of the States under the compact of the Union, they must necessarily be more watchful of the exercise or assumption of power, on the part of the States respectively and of the general government, than federal officers would naturally be.

"It may be again repeated, and cannot be repeated too often, that upon the States rests the immense responsibility of preserving not only their own sovereignty, but the just constitutional powers of the general government. Let it also be remembered, that the States and their civil functionaries are as essential to the existence and operation of the government of the Union as are the peculiar officers of the latter. Each and all are parts of a united whole, and all are bound by the most solemn ties of fidelity to all and every part thereof.

"What would be thought by the people of this country, should Congress pass a law to carry into effect that clause of the fourth article in regard to citizenship? and declare pains and penalties against any State functionary who should fail to comply? What would be thought if Congress should declare it a penitentiary offence, for any executive of a State to refuse to surrender a fugitive from justice? What State would submit to see its chief magistrate dragged before the federal tribunals, on charge of infraction of such a law, or what federal court would assume to compel his obedience [36] by mandamus? And yet the assumption of power to legislate at all upon the subject, is assuming supreme and unlimited power over the whole matter. There is no middle ground. A bare

statement of the proposition assumed, is its most effectual refutation.

"The law of 1793 was in fact but little, if any more than organizing the State authorities for the accomplishment of the constitutional duties devolved upon them. For that very reason it passed without scrutiny, and for a long time was obeyed without question. It was practically nothing more than the States themselves carrying out the constitutional compact. Not until it began to be required that the States should yield up all control over these subjects, and a prostration of their sovereignty was demanded, did attention become aroused. No importance, therefore, can justly be attached to the fact that this act was passed by an early Congress and was signed by the father of his country, and was acquiesced in by the States and people. It is a remarkable fact that the most startling deviations from strict constitutional limits occurred in the very earliest years of the Republic. So it must always be. But time, discussion, and experience have heretofore proved adequate correctives. So may they ever prove. Added to these, State sovereignty jeopardized, federal encroachment apprehended, and consolidation menacing, can hardly fail to accomplish the desired ends.

"To my mind, therefore, it is apparent that Congress has no constitutional power to legislate on this subject. It is equally apparent, that the several States can pass no laws, nor adopt any regulations, by which the fugitive may be discharged from service. All such laws and regulations must be declared void whenever they [37] are brought to the test of judicial scrutiny, State or national. It is equally apparent that it is the duty of the respective States to make laws and regulations for the faithful observance of this compact. They have generally done so, and doubtless would have continued so to do, but for the decision of the United States Supreme Court in the case of Prigg v. The Commonw. of Penn. It is still their duty so to do."

Afterwards, in considering the meaning of the word claim, he says, p. 39, "the State whose duty it is to deliver up the fugitive when the fact is determined."

§ 771. In the same Opinion, on pages 37-43 of the report, Judge Smith examines the meaning of the term claim and the effect of the guarantees in the amendments to the Constitution as being against the doctrines of seizure and removal under the provision alone, and against a trial by Commissioners as provided under the law of 1850, and against a summary trial, by any judicial officers, without jury. This portion of the Opinion will hereinafter be cited. He then proceeds to an examination of the decision of the Supreme Court in Prigg's case.' This portion of the Opinion, from pp. 43-47 of the report, is given in the note below.

13 Wisc. 43. "I ought not to dismiss the consideration of this question, without particularly adverting to the case of Prigg vs. The Commonwealth of Penn., 16 Peters' Rep. 540. The opinions in the other cases cited, are so conflicting, casual, or incidental, as to be of no force; and in the case of Prigg vs. Penn., it may be justly remarked that the discrepancy of opinion among the members of the court, was so wide and fundamental, as greatly to impair the authority of that decision. It affirms the constitutionality of the act of 1793, upon contemporaneous exposition, in one respect, and expressly [44] defies the same rule in another, for it pronounces the act constitutional in part, and unconstitutional in another part. Whatever of authority may attach to it in consequence of the character and eminence of the men who passed it, and of him who signed it, is effectually counteracted by the decision of the court that in one part of it, at least, the constitution was violated. Contemporaneous construction confers the power of legislation and execution upon the States as well as Congress; for, long before Congress assumed to act upon the subject, the State legislature had passed laws in fidelity to the compact, in most of which some of the framers of the Constitution had seats, and all of the slave States, and all or nearly all the free States continued to exercise the power up to a very recent period.

"Contemporaneous history, contemporaneous exposition, early and long continued acquiescence, all go to show the interpretation given to this provision of the Constitution by the States and the people. The slave States passed acts to execute the compact. The free States did the same. The action of the several States, or many of them, shows conclusively that they interpreted the provision as a com-. pact merely addressed to the good faith of the States. The slave States appealed to the free States for legislative action to carry into effect this provision of the federal Constitution, and demanded of the latter the stern exercise of a power which it is now sought to wrest from them. In 1826, the State of Maryland appointed commissioners to attend upon the session of the legislature of Pennsylvania and induce the latter to pass an act to facilitate the reclamation of fugitive slaves Their mission was successful. Pennsylvania yielded to the solicitations [45] of Maryland's commissioners, and passed the act of 1826, which was afterwards declared void by the Supreme Court of the United States in Prigg vs. Penn. In 1836 or 1837, similar commissioners were appointed by the State of Kentucky to the State of Ohio, whose mission resulted in the passage of a most stringent fugitive act by the legislature of Ohio. So, also, about the same time, in regard to Indiana and I believe Illinois. Up to 1837, the States esteemed it their duty, and slave States demanded its performance, to provide by law, for the execution and faithful observance of this compact. All seemed to regard it as a compact and nothing else; binding, it is true, and operative as law equally upon all, but still a compact, and a compact only.

Again, it is respectfully suggested, that the whole argument of Mr. Justice Story is based upon what is sometimes called the petitio principii. He assumes VOL. IL-33

§ 772. The introductory portion of the second Opinion (3) Wisc. 87-96) contains a further definition of his position as a State judge, in view of the decisions of the Supreme Court of the United States, and an assertion of co-ordinate State-judicial power to decide the question according to his own understanding of the Constitution as the highest law, and that a State that the Constitution makes it the duty of the federal government to enforce the right of the owner secured by the compact, and then infers that it must necessarily have the power, and then, if Congress has it, the States cannot have it.

All admit that there is no express power in the Constitution to legislate upon this subject, but it is claimed to be necessarily implied, as incidental to the grant of judicial power. The reclamation of a fugitive is first decided to be a 'case' arising under the Constitution of the United States, and hence within the judicial power. But this mode of implying powers can never be sustained. The judicial power is extended in several respects beyond the legislative power. The judicial power has jurisdiction in cases arising between the citizens of different States. A citizen of [46] New York may sue a citizen of Wisconsin, upon a promissory note, bill of exchange, covenants in a deed, in partition of real estate, or even in ejectment for the possession or title to lands. If a power of legislation may therefore be grafted by implication upon a judicial power, Congress may assume the whole power of legislation over these subjects in the respective States, and necessarily exclude State legislation, and accomplish at a blow the complete prostration and overthrow of the State sovereignty. Other illustrations might be given to manifest the danger of engrafting a legislative power upon a judicial, by implica tion. This was tried at an early day, and by the same course of reasoning, commo n law jurisdiction was claimed for the courts of the United States, and power of legislation over all common law subjects, claimed by implication in Congress. The Alien and Sedition laws were chiefly defended on these grounds.

"On the contrary, Chief Justice Taney, in his dissenting opinion, though he admits the right of Congress to legislate, but does not argue it, thinks the compact peculiarly enjoins the duty upon the States.

"Again, this case explicitly decides the claim of the owner to a fugitive slave to be a case' within the meaning of the Constitution; hence it is a suit, not in admiralty, or equity, and hence at common law, within the meaning of the Constitution. It also decides the determination of the claim to be a judicial proceed ing, and bases the power of the federal government in the premises, upon the grant of judicial power, and the power of legislation is assumed to be incidental to that. All these points, which are held to be res adjudicata, strike at the very vitality of the act of 1850, which attempts to confer such judicial [47] power upon Commissioners. Time will not permit a further review of this case. În my judg ment the opinion of the Chief Justice completely overthrows that of the Court, and so far as he attempts to argue his points, beyond doubt or controversy, establishes the doctrine here contended for.

"In view of the dissentient opinions of the members of the Supreme Bench; in view of the discrepancy of opinion which has characterized all other decisions wherein the question has been raised and argued; in view of the fugitive character of the power here claimed by Congress, leaping from article to article, from section to section, and from clause to clause, hovering now over a grant, then over a compact, fluttering now around an implication, then around an incident, to find whereon it may rest its foot; in view of the alarm which has seized upon many of the States in consequence of the enormous power which it has called upon Congress to assume in its behalf, and the deep wounds which it seeks to inflict upon the rights and sovereignty of the States, and upon the great principles of human freedom; in view of all this, are we not justified in asking of the Supreme Court of the United States to review their decision as the majority pronounced it in the case of Prigg vs. Commonwealth of Pennsylvania?”