cation. And the general government is provided with its executive, legislative, and judicial departments, not only to make laws regulating the rights, duties, and subjects thus confided to them, but to administer right and justice respecting them in a regular course of judicature, and cause them to be carried into full execution, by its own powers, without dependence upon State authority, and without any let or restraint imposed by it.

"It was, we believe, under this view of the right of requir ing, specifically, the custody of one from whom service or labor is due by the laws of one State, and who has escaped into another, and under this view of the powers of the general government and the duty of congress, that the law of 1793 was passed."

In regarding the provision as a treaty between independent nations, in speaking of the States as bound by this compact and in attributing, at the same time, to the national Government a power to carry it into effect, Judge Shaw seems to have supported the second construction. But it is also implied that the provision itself creates legal rights and obligations in private persons which the national Government is bound to maintain, and this may better accord with the third or the fourth construction. But if either the second or third construction was adopted by Judge Shaw, it is plain that his assertion, in the passage above noted, that the framers of the Constitution had authorized the general Government to prescribe means for the restoration of fugitive slaves, has no better logical basis than may be found for the similar assertion made by Judge Story in Prigg's case.

The judge did not pretend that there was anything in the words of the Constitution to indicate such a grant of power; but the power is by him attributed to the Government as a whole, not to the judiciary or to some other department or officer thereof.'

The questions presented in this case to the State Court were also argued before Judge Sprague, of the United States District Court, on application for habeas corpus in behalf of Sims. The Court, in refusing the petition, sustained the law of Congress; but no opinion of the judge has been published. The application to Judge Woodbury, as United States Circuit Judge, was on different grounds, and his decision had no reference to the question here considered. IV. Monthly Law Reporter, 10.

§ 767. On the trial of Allen, U. S. Deputy Marshal at Syracuse, June 21, 1852, before the New York Supreme Court Circuit, for violation of the State law of 1840' in the matter of the fugitive Jerry, the defence relied on the warrant of a U. S. Commissioner under the statute of 1850. The trial was before Hon. Richard P. Marvin. A report of the arguments and the charge of the judge were printed in pamphlet, at the office of the Syracuse Daily Journal. In his charge, Judge Marvin discussed the authority of Congress. He regarded the Constitution as a compact between the States as separate nationalities, and the provision as a treaty binding the States as political persons. His argument appears to be, that power over all the international relations of the States was expressly given to the general Government, and that the States were forbidden to make treaties with each other; that hence they can have no power in the international relations arising out of this treaty provision; that the power over the whole subject must be in Congress, or at least is a resulting power in the Government. See pp. 88, 91, 92, of the pamphlet.

§ 768. In Miller v. McQuerry (1853), 5 McLean, 472, where the custody appears to have been exercised under the law of 1850, Judge McLean, sitting at chambers, answering the objection "that the Constitution left the power with the States, and vested no power on the subject in the federal Government," referred to Prigg's case and the weight of authority in favor of the power of Congress, and reasserted that view of the provision which is herein called the second construction."

1 See ante, pp. 59, 60.

As he seems to have done before in Prigg's case, ante, § 759. In this instance he said, 5 McLean, 474:-"This argument has been sometimes advanced, and it may have been introduced into one or more political platforms. In regard to the soundness of this position, I will first refer to judicial decisions. In the case of Prigg, &c., the judges of the Supreme Court, without a dissenting voice [Judge McLean must have forgotten Judge Baldwin], affirmed the doctrine that this power was in the Federal government. A majority of them held that it was exclusively in the general government. Some of the judges thought that a State might legislate in aid of the Act of Congress, but it was held by no one of them that the power could be exercised by a State except in subordination of the Federal power.

"Every State court which has decided the question, has decided it in accordance with the view of the Supreme Court. No respectable court, it is believed, has sustained the view that the power is with the State. Such an array of authority can scarcely be found in favor of the construction of any part of the Con

$769. The case of Booth, June term, 1854, 3 Wisconsin R. p. 1, was on petition of Booth, in vacation, to Judge Smith of the Supreme Court of the State, to be discharged from the custody of Ableman, U. S. Marshal, by whom he was held under a warrant issued by a U. S. Commissioner, for having "unlawfully aided, assisted, and abetted a person named Joshua Glover, held to service or labor in the State of Missouri under the laws thereof, and being the property of one Garland, and having escaped therefrom into the State of Wisconsin, to escape from" the custody of a U. S. Marshal, by whom he was held in virtue of a warrant issued by a U. S. District Judge. Judge Smith decided that the petitioner was entitled to his discharge

stitution which has ever been doubted. But this construction, sanctioned as it is by the entire judicial power, State as well as Federal, has also the sanction of the legislative power." Judge McLean then refers to the legislation of Congress, and speaks of the motive or object of the provision as of great importance. He then observes, on p. 475:

An individual who puts his opinion, as to the exercise of this power, against the authority of the nation in its legislative and judicial action, must have no small degree of confidence in his own judgment. A few individuals in Massachusetts may have maintained, at one time, that the power was with the States; but such views were, it is believed, long since abandoned, but they are reasserted now more as a matter of expediency than of principle.

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[p. 476.] But whether we look at the weight of authority against State power, as asserted, or at the constitutional provision, we are led to the same result. The provision reads" (&c., reciting it). "This, in the first place, is a federal measure. It was adopted by the national convention, and was sanctioned as a federal law by the respective States. It is the supreme law of the land. Now, a provision which cannot be enforced, and which has no penalty for its violation, is no law. The highly respectable gentleman who read an ingenious argument in support of these views [Dr. Brisbane, of South Carolina] is too good a theologian to contend that any rule of action which may be disregarded without incurring a penalty, can be law. This was the great objection to the articles of confederation. There was no power to enforce its provisions. They were recommendatory and without sanctions. There is no regulation, divine or human, which can be called a law, without a sanction. Our first parents, in the garden, felt the truth of this. And it has been felt by violators of the divine or human laws throughout the history of our race.

"The provision in the constitution is prohibitory and positive. It prohibits the States from liberating slaves which escape into them, and it enjoins a duty to deliver up such fugitives on claim being made. The constitution vests no special power in Congress to prohibit the first or to enforce the observance of the second. Does it, therefore, follow that effect can be given to neither, if a State shall disre gard it? Suppose a State declares a slave, who escapes into it, shall be liberated, or that any one who shall assist in delivering [p. 477] him up shall be punished. If this power belongs to the States and not to the Federal government, these regu lations would be legal, as within the exercise of their discretion. This is not an ideal case. The principle was involved in the Prigg case, and the Supreme Court held the act of the State unconstitutional and void.

"It is admitted that there is no power in the Federal government to force any legislative action on a State. But if the Constitution guarantees a right to the

by reason of the unconstitutionality of the law of Congress of 1850, as well as by defects in the warrant.

A certiorari having been applied for, and allowed by the same judge, the cause came on for argument at the June term, 1854, before a full bench, consisting of Chief Justice Whiton, and Justices Crawford and Smith.' The Opinion of the court confirming Judge Smith's separate decision was delivered by the Chief Justice. In this Opinion, the Chief Justice notices the opinions in favor of the power of Congress to legislate on the subject, which were expressed in cases arising under the law of 1793, but, without either affirming or denying the general power, decides that the law of 1850 is unconstitutional for objections which could not have been made against the former Act. The Opinion, therefore, throws no light on the question here examined-the construction of the provision and the basis of legislative power.

master of a slave, and that he shall be delivered up, the power is given to effectuate that right. If this be not so, the Constitution is not what its framers supposed it to be. It was believed to be a fundamental law of the Union. A federal law. A law to the States and to the people of the States. It says that the States shall not do certain things. Is this the form of giving advice or recommendation? It is the language of authority to those who are bound to obey. If a State do the thing forbidden, its act will be declared void. If it refuse to do that which is enjoined, the Federal government, being a government [ital, in rep.], has the means of executing it.

"The constitution provides that full faith and credit shall be given to public acts, records, and judicial proceedings' of one State in every other. If an individual, claiming this provision as a right, and a State court shall deny it, on a writ of error to the Supreme Court of the Union, such judgment would be reversed. And the provision that the citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.' Congress, unquestionably, may provide in what manner a right claimed under this clause and denied by a State, may be enforced. And if a case can be raised under it, without any further statutory provisions, so as to present the point to the Supreme Court, the decision of a State court denying the right would be reversed. So a State is prohibited from passing a law that shall impair the obligations of a contract. Such a law the [p. 478] Supreme Court has deelared void. In these cases, and in many others where a State is prohibited from doing a thing, the remedy is given by a writ of error under the legislation of Congress. The same principle applies in regard to fugitives from labor. A fugitive from justice may be delivered up under a similar provision in the constitution," &c., reciting it, with the remark that "in both cases Congress has provided a mode in which effect shall be given to the provision. No one, it is believed, has doubted the constitutionality of the provision [meaning, of course, the statute] in regard to fugitives from justice."

Byron Paine, Esq., elected judge of the Court in 1859, was counsel for the petitioner, against the constitutionality of the law of Congress. J. R. Sharpstein, Esq., U. S. Dist. Attorney, and E. G. Ryan, Esq., were counsel for the respondent. The arguments are not given in the State report. They are given in a pamphlet report, published at the office of the Free Democrat, Milwaukee.

Mr. Justice Crawford concurred with his brethren "in holding the petitioner entitled to be discharged, because the commitment sets forth no just cause of detention," and that it did not "appear from this process that Glover [the supposed slave] was committed to the custody of Mr. Cotton, the Deputy Marshal, upon claim of any person whatever," &c. (ib. 87.)

Judge Crawford dissented from the other justices, in holding the law of 1850 to be constitutional, and from Judge Smith, by asserting generally the power of Congress to legislate on the subject. On page 73, he says:-"From all the information which I have derived from the lengthy arguments in the present case, from the nature and history of the clause in the Constitution of the United States, in pursuance whereof the law was enacted by Congress, as well as from an examination into the several cases reported in the federal and State courts in which this precise question has been adjudicated, I am satisfied that Congress has the constitutional power to legislate," &c. Judge Crawford then remarks that but for the judicial authority to the contrary, he should support the doctrine of concurrent State legislation. After citing the older cases, he says, on p. 80:-"From these decisions, I am led to view the subject as definitely settled, and the maxim, stare decisis, as entirely applicable. I understand the Chief Justice to feel himself concluded by these decisions, so far as they de clare the Act of 1793 to have been the exercise of a constitutional power by Congress to legislate, but that," &c. On the same page, Judge Crawford said that the force of the argument on both sides had raised a doubt in his mind as to the constitutionality of the law of 1850, but he did not otherwise express opinions bearing on the questions here considered.

§ 770. It appears that in denying altogether the power of Congress to legislate on this subject, Judge Smith was alone. For this reason, probably, he wrote out the notes of the Opinion delivered by him on the certiorari. The Opinion delivered by him on his original decision, occupies forty-two pages of the report, and the second, fifty-seven pages, and the space required precludes their insertion here in full. Since the commitment was on both occasions held void for other reasons, the