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them without a violation of the Constitution. But the majority of my brethren, proceeding beyond these positions, assume the ground that the clause of the Constitution above quoted, as an affirmative power granted by the Constitution, is essentially an exclusive power in the federal Government; and, consequently, that any and every exercise of authority by the States at any time, though undeniably in aid of the guarantee thereby given, is absolutely null and void.

"Whilst I am free to admit the powers which are exclusive in the federal Government, some of them became so denominated by the express terms of the Constitution; some because they are prohibited by the States; and others because their existence, and much more their practical exertion by the two Governments, would be repugnant, and would neutralize, if they did not conflict with and destroy each other: I cannot regard the third clause of the fourth Article as falling either within the definition or meaning of an exclusive power. Such a power I consider as originally and absolutely, and at all times, incompatible with partition or association. It excludes everything but itself."

Judge Daniel does not give any opinion on the constitutionality of the statute of 1793, a decision on that point not being material to the judgment. But he speaks of the provision as if it contained a grant of power to "the federal Government" (see p. 652), and only contends that it is not exclusive. By agreeing in the judgment of the court, Judge Daniel must have recognized the right to seize and remove the fugitive, independently of statute, and by this supported the fourth construction. There is nothing in the Opinion to indicate his acceptance of the second construction as a basis for the legislative power, except his speaking of the power conferred in the provision as being a power in "the federal Government." He may not, however, have intended to distinguish such a power in the Government from a power belonging to the judiciary depart ment of that Government.

§ 761. Mr. Justice Baldwin was the only member of the court who did not admit the Act of Congress to be constitutional. The reporter says, p. 636:-" Mr. Justice Baldwin

concurred in reversing the judgment of the Supreme Court of Pennsylvania, on the ground that the act of the Legislature [of Pennsylvania] was unconstitutional; inasmuch as the slavery of the person removed was admitted, the removal could not be kidnapping. But he dissented from the principles laid down by the Court as the grounds of their opinion." Judge Wayne says, in his several Opinion (p. 637), “ All the members of the Court, too, except my brother Baldwin, concur in the opinion the legislation by Congress to carry the provision into execution is constitutional; and he contends that the provision gives to the owners of fugitive slaves all the rights of seizure and removal which legislation could give; but he concurs in the opinion if legislation by Congress be necessary, that the right to legislate is exclusively in Congress."1

It appears that Judge Baldwin must have received the fourth construction exclusively.

§ 762. It appears that, of the seven' members of the court, five justices-Story, Wayne, Taney, Thompson, and McLean -affirmed the power of Congress to legislate. Mr. Justice Daniel refused to consider the question; and Mr. Justice Baldwin denied that the power belonged to Congress.'

Of the five affirming the power of Congress, Judge Story must, from the whole of his Opinion, be taken to have supported the third construction. In this he appears to have been alone, if not supported therein by Judge Wayne, whose language, however, agrees best with the second construction. The second construction seems also to have been adopted by Judge McLean. In the Opinions of Chief Justice Taney and

1In Sims' case, 7 Cushing, 308, Judge Shaw remarks that Judge Baldwin "had, however, previously expressed an opinion, on the circuit, that the act was constitutional, in the case of Johnson". Tompkins, Baldwin, C. C., 571.” But Judge Baldwin's decision in that case had nothing to do with the statute of Congress.

Judges Catron and McKinley are not mentioned in the report.

As to whether the decision of this question was material-if the unconstitutionality of the Pennsylvania statute was a direct consequence of the provisions of the Constitution, the validity of the act of Congress was immaterial. (See Sutliff, J., 9 Ohio, 263.) All the justices, with the exception of Judge McLean, held that the act of Pennsylvania was invalid, merely because conflicting with rights belonging to the plaintiff under the Constitution itself; and Judge McLean held that the States had no power to legislate, even in the absence of legislation by Congress.

Judge Thompson there is also much to favor the same construction, though these two members of the court may possibly have taken that view of the provision which is here called the fourth construction.

It will be remembered that all the justices, except Judge McLean, supported the right of seizure and removal by the claimant owner, as a consequence of their interpretation of the words "shall not be discharged from such service or labor," and therefore gave to that clause of the provision the effect of private law. But no member of the court, unless Judges Taney and Thompson may be so understood, seems to have taken the two clauses of the provision, together, as having the effect of private law, and as creating cases, within the judicial power, between the claimant and the alleged fugitive as the two parties therein. There is but little support, therefore, given by these Opinions to the fourth construction as the basis of the power of Congress."

It will hereafter be seen that this case has generally been understood as sustaining the second construction.

$763. The case of Jones v. Van Zandt, in the United States Circuit, 1842-3, before Judge McLean, 2 McLean, 597, was an action for harboring and concealing, in Ohio, fugitive slaves belonging to the plaintiff, contrary to the provisions of the Act of Congress. Judge McLean affirms the constitutionality of the statute, but there is nothing in his charge to the jury, ib. p. 597, or in his Opinion, ib. p. 611, distinguishing the basis of the power of legislation. The power is considered as settled by the Opinion of the Supreme Court in Prigg's case. The same case having been carried up to the Supreme Court, 5 Howard 223, Mr. Justice Woodbury, in delivering the Opinion of the Court,' did not consider particularly the question of leg

11 Kent's Comm. 7th ed. p. 445, note, says that in this case it was "declared that the national Government, in the absence of all positive provisions to the contrary, was bound, through its proper department, legislative, executive, or judiciary, as the case might require, to carry into effect all the rights and duties imposed upon it by the Constitution." Here the case is understood as deciding that the duty imposed by the Constitution is, in the first instance, the duty of the national Government as a whole, according to one adaptation of the third construction-not a duty in the judiciary, according to Story's adaptation of that construction or according to the fourth, nor a duty of the States, according to the first and second.

2 Jones v. Van Zandt, 5 Howard (1846), p. 229:-"This court has already,

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islative power, viewing it as already settled by authority. In the extract from the Opinion, given in the note below, there is, avowedly, a brief repetition of Judge Story's ideas given in Prigg's case. There is the same superfluous assertion of the necessity of the constitutional provision, and in some places a similar statement of its effect on private persons, harmonizing best with the fourth construction. But in other passages there is a general reference to "duties imposed on the general Government" to enforce the provision, "whether in favor of itself or others"-language which may better suit the third construction, and is not perhaps incompatible with the second.

after much deliberation, decided that the Act of Feb. 12, 1793, was not repugnant to the Constitution. The reasons for their opinion are fully explained by Justice Story, in Prigg v. Pennsylvania, 16 Peters, 611.

"In coming to that conclusion, they were fortified by the idea that the Constitution itself, in the clause before cited, flung its shield, for security, over such property as is in controversy in the present case, and the right to pursue and reelaim it within the limits of another State.

"This was only carrying out, in our confederate form of government, the clear right of every man at common law to make fresh suit and recapture of his own property within the realm. 3 Black. Com. 4.

"But the power by national law to pursue and regain most kinds of property, in the limits of a foreign Government, is rather an act of comity than strict right; and hence, as the property in persons might not thus be recognized in some of the States in the Union, and its reclamation not be allowed through either courtesy or right, this clause was undoubtedly introduced into the Constitution as one of its compromises, for the safety of that portion of the Union which did permit such property, and which otherwise might often be deprived of it entirely by its merely crossing the line of an adjoining State. 3 Madison Papers, 1569, 1589.

"This was thought to be too harsh a doctrine in respect to any title to property, of a friendly neighbor, nor brought nor placed in another State, under its laws, by the owner himself, but escaping there against his consent, and often forthwith pursued in order to be reclaimed.

"The Act of Congress, passed only four years after the Constitution was adopted, was therefore designed merely to render effective the guarantee of the Constitution itself; and a course of decisions since, in the courts of the States and Johns. of the general Government, has for half a century exhibited great uniformity in 5 Serg. & R. 62; favor of the validity as well as expediency of the Act. 67; 12 Wend. 311, 507; 2 Pick. 11; Bald. C. C. 326; 4 Wash. C. C. 326; 18 Pick, 215.

"While the compromises of the Constitution exist, it is impossible to do justice to their requirements, or fulfill the duty incumbent on us towards all the members of the Union, under its provisions, without sustaining such enactments as those of the statute of 1793.

"We do not now propose to review at length the reasoning on which this Act has been pronounced constitutional. All of its provisions have been found necessary to protect private rights, under the clause in the Constitution relating to this subject, and to execute the duties imposed on the general Government, to aid, by legislation, in enforcing every constitutional provision, whether in favor of itself or others. This grows out of the position and nature of such a Government, and is as imperative on it in cases not enumerated specially in respect to such legislation, as in others.

"That this Act of Congress, then, is not repugnant to the Constitution, must be considered as among the settled adjudications of this court."

§ 764. In Kauffman v. Oliver (1849), 10 Barr, 516, where the question was of the power of the State courts to entertain an action for harboring slaves and aiding them to escape, the Pennsylvania Supreme Court, Coulter, J., after saying that "slavery then is recognized and enforced here by virtue of that compact alone," and reciting the provision, says :—“ Upon claim made by the person to whom service is due, the fugitive shall be delivered up. To whom shall this claim be made? Undoubtedly to the person or persons who shall have the alleged slave in custody, or who shall attempt to protect him from the owner to whom the services are due. And as, by the compact, the slave is not discharged from his service by escaping into a free State, the owner, or his authorized agent, may pursue and take him without riot or breach of the peace, by manucaption or reprisal in any place where the compact is obligatory, just in the same manner as if the recaption was in the slave territory. Sovereignty is so far yielded by the free States, and so far the constitutional provision executes itself. But if the fugitive is harbored, protected, concealed, or enticed by any persons, the owner must make the claim in a legal manner and by legal process, according to the Constitution and laws of the United States. The mode, manner, and circumstance of such claims are fully set forth in the Act of Congress of 1793, and the means of making such claims effectual are therein provided.

"Congress has regarded this claim to the service of the fugitive as a right of property, and that is the only light in which it can be viewed; and it must be made by one person or persons against another person or persons, properly, to be asserted in a court of justice. It is therefore a controversy between parties arising under the Constitution and laws of the United States, and must be referred to the forum having jurisdiction of such controversies. The Constitution of the United States declares that the judicial power of the courts of the United States shall extend to all cases arising under the Constitution and laws of the United States, &c. This cause of action, good or bad, is within the jurisdiction of the United States courts; for Congress has power to pass all laws neces

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