Government is to enforce by acting in their stead (the second construction), or a right correlative to a duty on the part of the national Government, of which duty Congress merely indicates the performance (the third construction), or a right correlative to obligations of the fugitive and all third parties, arising under private law contained in the Constitution (the fourth construction).'

No Opinion was delivered by Judge Scott on this case. Judge Peck, in his Opinion, reviews the cases at length, and relies altogether on them as controlling authority. He even expresses a doubt whether, if the question were then newly raised, the court could recognize the power in Congress.' His observations throw no light on the question of construction.

§ 778. Judge Brinkerhoff, dissenting, said, ib. 223 :-"These relators ought to be discharged, because they have been indicted and convicted upon a subject-matter in reference to

1

Judge Swan then enumerates the grounds taken against the power of Congress: among these one which does not commonly appear in the reports. Others, he says, insist "that the amendment to the Constitution which secures freedom of religious belief makes the provision in relation to the reclamation of slaves subordinate to it, and, by implication, of no obligation upon those who believe slavery a sin." No such objection appears in the argument for the relators in this case by Mr. Wolcott, the State's Atty. General.

29 Ohio, 211. "If the question were now res integra, and we, unaided by the history of the constitutional provision, and uninformed as to the previous decisions, long-continued use, and contemporaneous exposition, were now called upon, for the first time, to determine the precise effect of that provision and the power of Congress over the subject, it is probable that, giving a strict construction to the Constitution and the powers conferred by it, we might hold that Congress had no authority to legislate as to the reclamation of fugitives from service. But when we look," &c. But on p. 201, Judge Peck says that, "A careful perusal of the "History of the Origin and Formation of the Constitution,' etc., by Curtis, and the supplement to Elliott's Debates, will satisfy every one at all familiar with the history," &c., that this provision "was deemed by many of the members, and those they represented, of great, if not of vital importance, and contributed largely to its adoption by some of the Southern States. He will also be satisfied that, if any legislation was required, in order to carry the provisions of that clause into effect, the framers of that instrument could not, from the nature of the interests involved, the difficulties before that time encountered, and those which might reasonably be anticipated in the future, have designed or intended to commit such necessary legislation to the States. Interpreting this clause in the light of the surrounding circumstances, he could entertain no doubt but that this clause had a material effect in procuring the adoption of the Constitution, and that all necessary legislation in regard to it ought to have been, and was by them supposed to be, committed to the national and not the State legislatures." This is a very perfect specimen of that method of expounding the Constitution, which was denounced by Judge Baldwin, in a passage cited in the preface of this work, p. ix. It is a fair counterpart to the supplementary canon which Judge Story introduced in Prigg's case (ante, p. 461).

which Congress has, under the Constitution of the United States, no legislative power whatever. As to the correctness of this proposition, there does not rest in my mind the shadow or glimmer of a doubt.' The federal government is one of limited powers," &c. Then, reciting the provision, “This is the only clause of the Constitution from which any body pretends to derive, or in which any body pretends to find a grant of power to Congress, to legislate on the subject of the rendition of fugitives from labor. I can find in it no such grant. The first part of it simply prohibits State legislation hostile to the rendition of fugitives from labor. Such fugitive shall not be discharged in consequence of any law or regulation' of the State into which he shall escape. But shall be delivered up.' By whom? By Congress? By the federal authorities? There are no such words; and no such idea is hinted at. This is evident from an inspection of the whole of the preceding portion of this article." Then reciting Art. 4, sec. 1, and the grant of power to Congress to legislate for the proof and effect of acts, &c., Judge Brinkerhoff says, "When they intended a grant of power to Congress, and not a mere contract stipulation by an injunction of duty upon the States, they say so, and leave us no room for cavil on the subject." Then citing the first two provisions of the second section, on privileges, &c., of citizens, and delivery of fugitives from justice, he says, "That these clauses are mere articles of compact between the States, dependent on the good faith of the States alone for their fulfillment, I suppose no one will dispute. They do not confer upon

1 Admitting that Congress had no power to pass the law, the question was still presented, Have the State courts power in any case to set at liberty persons in custody under judgment of a court of the U. S.? The decision of the Ohio court may have been proper, on the ground that they have no such power, and that the only remedy was in an appeal from the District Court to the Circuit Court, and to the Supreme Court of the U. S. But the judges did not so view their position. Judge Sutliff (p. 229) says, "We all agree that if the Act of Congress, under which the relators have been convicted, is unconstitutional, their imprisonment is illegal, and they ought to be discharged." The same doctrine was held in re Booth and Rycraft. See particularly Ch. J. Whiton's note, 3 Wisc. 176, 177. In this Judge Crawford concurred. In the earlier part of this work (Vol. 1, p. 493–495) it was argued that State courts may inquire into the validity of a custody by adminis trative or ministerial officers under color of the authority of the U. S. But it was not intended to affirm that they would not be bound to recognize the custody if under the judgment of a court holding the judicial power of the U. S., even when in the judgment of the State court the subject-matter is not within the judicial power of the U. S.

Congress any power whatsoever to enforce their observance." The judge then argues the want of power from the express grant of power, in respect to proof of acts, &c., in the first section. He urges that these provisions are substitutes for similar clauses in the Articles of Confederation which "contained nothing but articles of compact," and in the "articles of compact" of the ordinance of 1787. "I conclude," he says (ib. 226), " therefore, that the States are bound, in fulfillment of their plighted faith, and through the medium of their laws," &c. "But the federal government has nothing to do with the subject, and its interference is sheer usurpation of a power not granted, but reserved." Judge Brinkerhoff is therefore a supporter of the first construction of the provision.

§ 779. Judge Sutliff discusses the question of the power of Congress, in an Opinion occupying nearly one hundred pages of the report, affirming the power to be with the States exclusively, according to the first construction. The introductory part of his argument (ib. 231–237) accords with that of Judge Brinkerhoff. The part of Judge Sutliff's Opinion must be noted' wherein he states what he supposes to be the received

19 Ohio, 243. "In the absence of any special provision authorizing Congress to legislate, it is claimed that Congress has become invested with power to legislate by virtue of three distinct provisions of the Constitution. The provision in Art. 4, it is said, makes it a duty of the States respectively to surrender the fugitive; and sec. 2 of Art. 3, extends the judicial power to all cases arising under the Constitution and laws of the U. S.; and the concluding clause of sec. 8, Art. 1, authorizes Congress to make the necessary laws for carrying the judicial power into execution. And under these three provisions, it has been suggested that Congress may have derived power to legislate for the rendition of fugitives. The argument may be simply stated thus: Congress has the power, under the last clause of sec. 8, Art. 1, to pass proper laws for the organization of the judiciary, and for the execution of its judicial powers. The rendition of a fugitive is provided for under the Constitution. Therefore, power of the judiciary should extend to that provision; and therefore Congress may legislate to carry into execution, in that regard, the judicial power. Now unless the premises of this fair statement of the argument be true, and unless the minor proposition of the premises be included in the major, the reasoning is fallacious and the conclusion false. But the minor proposition is not included in the major, and therefore the premises are not true. The judicial power is only extended to all cases arising under the Constitution and laws of the United States, &c., while the provision that no person held,' &c., is not a case. It is a compact or stipulation, it is a duty; but it is not even a stipulation or duty on the part of the federal government, but upon the States merely. It cannot, then, with propriety, be affirmed that Congress has any more power for the performance of the duty of delivering up fugitives, than for the performance of any other duty of the States under the Constitution. For while Congress has the power to pass or make all laws necessary and proper for carrying into execution the powers of the judiciary, it must be remembered that the powers of the judi

theory for the legislation of Congress. From the analysis of the cases herein given, it will be seen that there actually is no authority supporting such a theory. The judge's mistake is a new illustration of the obscuration of the whole subject by the Opinions in Prigg's case. The case supposed by Judge Story to be within the judicial power was a case in which the Government of the United States, not a State, was party defendant. This part of Judge Sutliff's argument is also important, as it may bear on that theory for the legislation of Congress which arises from the fourth construction. The greater portion of the Opinion is an elaborate discussion of the position that the question presented is res adjudicata, including a critical examination of the arguments judicially affirmed in Prigg's case (ib. 253-275). On the supposition that views of "polity" or political expediency may have influenced the court in that case, Judge Sutliff maintains, in a historical exposition (ib. 277, 278), that the "political propositions" assumed by the court are in conflict with the true doctrine of the distribution of sovereign power between the States and the national Government. He concludes that while "the number of legal opinions" may be for the constitutionality of the Acts of Congress, "the weight of authority," in the true sense of the word, is that Congress has not the power to legislate, but that it is with the States.

ciary only extend to 'cases under the laws of the U. S.,' &c., and that no laws can be passed by Congress except within the limits of its delegated powers. It therefore follows that the judicial power of the federal government, as to cases arising under the laws of the U. S., is only coextensive with the legislative power of the federal government, and therefore extends no further in regard to cases arising under the laws of the U. S. than the delegated powers of Congress to legislate. Therefore, if no power is delegated to Congress, independent of the judiciary clause, to legislate for the rendition of fugitives, inasmuch as the power of the judiciary is only coextensive with the power of Congress in that regard, it is certain that Congress has no power, under the grant of power to make laws to carry the judi cial power into execution, to pass laws beyond the extent of the judicial powers; and which, as we have seen, do not extend to any legislation by Congress in relation to the rendition of fugitives, Congress having no power to legislate on that subject. But it is absurd to say that the Constitution ever contemplated a delegation of power by the States to Congress to legislate for the enforcement of duties devolved upon the States under the Constitution. Nor can it with any reason be pretended that Congress has power to legislate as to any duty of the Štates without conceding a like power to legislate for the enforcement of all duties of the States under the Constitution. If, then, Congress has power to legislate respecting the duty of the States to surrender fugitives, it has the power to enforce the duty of each State, whether slave or free, to extend all the privileges and immunities of citizens to the citizens of every other State, whether negroes, mulattoes, quadroons, or others, as well as whites. And it might with equal propriety," &c.

$780. In United States v. Buck, in the U. S. Dist. Court for the Eastern District of Pennsylvania, 1860, 8 Am. Law Reg. 540, the defendant had obstructed the Marshal holding a fugitive slave in his custody under a certificate under the law of 1850, Judge Cadwalader commenced his charge by saying:-"The government of the United States exists through a delegation of specifically defined powers, which the several States have yielded upon certain conditions. The rightful continuance of the government is dependent upon the faithful performance of these conditions." After mentioning the delivery of fugitives from justice and labor as among these conditions, he observes:-"In legislating for the fulfillment of these two constitutional conditions, Congress has never assumed the power of disposing at pleasure of the custody of a fugitive of either kind. The Constitution would not have sanctioned any such arbitrary legislation." The judge does not otherwise explain the basis of the power of Congress, which power he fully sustains.

In the same charge, ib. 543, Judge Cadwalader affirins "The owner of a fugitive slave is not bound to proceed under either of these laws. He may follow the slave into the State into which he has escaped, and may without any legal process arrest him there; and may, without any judicial certificate, or other legal attestation of the right of removal, carry him back to the State from which he escaped. All this may be done lawfully. But if the owner does not, under one act or the other, obtain a certificate of his right of removal, he becomes liable as a trespasser, for the arrest, detention, and removal, unless he can prove the escape and that the fugitive owed him service or labor in the State from which he fled."

In attributing this operation to the provision, independently of any legislation, the judge supports the fourth construc tion.'

'In many other cases maintaining the law of 1850, the power of Congress has been necessarily affirmed, without any particular examination of the basis of the power. The following are the principal authorities:-Henry Long's case, before Judson, J., U. S. Dist. C., 9 Legal Obs. 73, S. C., 3 Am. Law Journal, 294. The opinions in Sims' case, IV. Month. L. R., charges by Nelson, J., U.S. Cir. C.; 1 Blatchford's R. 635; 2 ib. 559; U. S. v. Reed, ib. 437, 469. Trial of Scott, U. S. Dist. C., before Sprague, J., IV. Month. L. R. 159. Case of John Davis before Conckling, J., VOL. II.--34