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And, in doing this, this court is not wanting in respect for that decisionof whose lamented author it is my privilege to have been a pupil. I am aware that a large and increasing number of the profession do not yield assent to its arguments--that it is often characterized, to use the language of another member of the Ohio Judiciary, with respect to it, as "not having the ring of the true metal," but it is evident that the duty this court has to perform is to examine it in its bearings upon the clause in question, and not the one in regard to which it was pronounced.

was constitutional. The Supreme Court | grounds upon which it is founded pass decided that without legislation or even before us, that we may see how far they process of law, the master had the apply to the clause in question. right of recaption, the Constitution, so to speak, executing itself, and that any law which interfered with this right, violated the Constitution. This was the point before the Court; all their remarks bearing upon it were proper and legitimate, and all their remarks beyond it are simply obiter dicta. The Court were to consider an act of Pennsylvania, not of Congress: they were to say whether the former was in violation of the Constitution, not whether the latter was agreeable to it. The case of Jones vs. Vanzandt, 5 Howard, 215, in which the point did arise for decision, shows that the Court made no new examination. Judge Woodbury contents himself with saying, that since the decision in Prigg vs. Pennsylvania, the question has been settled. It is evident that the attention of the Court was not directed to the obiter character of that decision, and under the impression that there had been an adjudication binding as a precedent, they not only declined to disturb but even to examine it.

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Under these circumstances, even laying aside the objection that the Supreme Court have no legislative power, no jurisdiction beyond cases. ing before them, and therefore no power absolutely to bind inferior courts, except in those "cases," it may seriously be asked whether the constitutionality of legislation by Congress as to the fugitive slave clause even can be considered as settled in the Supreme Court in favor of the legislation. There has been an obiter dictum, and a decision without examination, upon the authority of this obiter dictum. It seems to be an appropriate case for a careful re-examination, and an elaborate decision by that court.

If such is the case as to the fugitive servant, then a fortiori is it as to the fugitive criminal clause. And, at all events, these decisions only bind courts examining the latter clause so far as their reasons and arguments apply to it.

Following this rule, which all will admit as satisfactory, let us examine the Prigg decision: one by one let the

Judge Story's first reason for affirming the constitutionality of legislation by Congress in execution of the fugitive servant clause is, the national character of the duty required, and the difficulty of its performance, except under the supervision of the Federal Government. Of all arguments in favor of a claim of power, this is perhaps the most dangerous. If the framers of our organic law did not see this view of the matter in a light sufficiently vivid to induce them to grant the power expressly, we have no right to infer it. And no court has ever yet gone so far as to imply a power in Congress to legislate, from the fact that by such legislation the end could be better attained than by State action. And Judge Story rather uses this consideration as an argument strengthening and giving force to the reasons subsequently adduced, than as a distinct basis upon which to rest the claim of power.

The second reason is, that as the reclamation of fugitive slaves is a case arising under the Constitution,' Congress can devolve the execution of the clause upon the Federal Courts, as in the second and third sections of the act they had attempted to do. But the execution of the fugitive criminal clause is confided by the first section of the act to the Governors of the States, and not to the Courts at all, and therefore the argument has no application here.

The third, last, and principal rea

son advanced by Judge Story, consists in the argument that a duty is here imposed upon the national government, and therefore a corresponding power of legislation necessarily results. The syllogism may be stated thus:

Where a national duty is imposed, means are given to the Federal Government to perform it.

Such a duty is imposed in the fugitive servant clause. Therefore there are are means (i. e. legislative power,) to perform it.

That a power to legislate in such cases, appertains to Congress, cannot be denied. It is expressly given in the last portion of the eighth section of the first article, which, in terms, gives Congress power

"To make all laws which shall be necessary and proper, for carrying into execution the foregoing powers, and all other powers vested by this Constitution, in the Government of the United States or in any department or officer thereof."

Of course, where there is a duty, there is a power to perform it, and if such power, then a power in Congress to supervise its execution.

But does the minor of this syllogism apply to the fugitive criminal clause? Is any duty there imposed upon the Government of the United States, or any department or officer thereof, from which a power can be implied? If so, what is it?

Certainly it is not a national duty to make the demand; that is for the Executive of the State from whence the flight took place. Nor is it any more a national duty to make the surrender. Naturally and necessarily, it must be the duty of some officer of the State in which the accused is found. No national duty was created by the same words in the Articles of Confederation. Nor is any here imposed upon the "government of the United States, or any department or officer thereof; and that no national duty is here imposed, was evidently the view of the Congress of 1793, when they confided the discharge of it to the Executive authorities of the several States.

cannot legislate; and if they can legislate, it must be to provide for the discharge of a national duty, by national means. And to assume the power from the fact, that the duty is imposed upon the "Government of the United States, or some department or officer thereof," and then in exercising the power, to devolve the performance of the duty upon the State authorities, would be a stretch of power not often equalled in our history.

The

And the three examples of similar implications of power, put by Judge Story in this part of the decision, show that this conclusion is correct. power to apportion for representatives in Congress necessarily follows from the power expressly granted to Congress, and corresponding duty, to enumerate for that very purpose.The power to legislate a treaty into execution, is the result of the express power of the President and Senate to make one. And the right of Congress to give power to the U. S. Courts, by habeas corpus, to protect members of Congress in their freedom from arrest, is but an instance of judicial jurisdiction, claimed as of 'a case arising under the Constitution," and therefore, wholly inapplicable to the clause in question, which is not proposed to be executed through our courts. No instance is here cited, nor can any case be found where the right in Congress to legislate has been implied from a duty imposed on States. As well would they have the right to enforce by legislation, the various prohibitions upon the States; as that they shall pass laws impairing the obligation of contracts, &c.

The result then is, that as the highest court of our country has never affirmed the constitutionality of such legislation, and as the reasons of the "decisions which have been made upon the other sections of this act, do not apply here, there is no reason why this Court should not obey its own convictions of duty.

And it is worthy of remark, that thus was destroyed the only argument by which the power of Congress to legislate, can be supported. For, if the duty here is not national, Congress

One other argument, however, deserves notice before passing from this branch of the case. The practice of the whole country, the opinion of the entire profession, of statesmen, and legislators, is referred to as authority.

Now, recollecting that the necessary (has passed a sufficient law in disresult of the reservation to the States charge of the constitutional duty imand the people, of all power not grant-posed upon her, (Swan's Statutes, ed, is, that the power must be exclu- 546,) under which the custody of the sive somewhere, (and so the Supreme prisoner is not claimed, he is unlawCourt held in the Prigg case,) the ex- fully deprived of liberty. ercise of a power in the States to legis- But admitting, for the sake of argulate for the extradition of fugitives, ment, that Congress may legislate, might as fairly be inferred from the through whom must it put the mafact that almost every State in the chinery of the law in motion? There Union has, on the Statute Book, laws is no more familiar principle than this : bearing upon this subject. But it is acts of Congress are to be executed by not true that the practice has been officers of the United States, State unbroken of regarding the power of laws by State officers. Congress canCongress as complete. Against the not impose duties upon officers of a current of opinion, mainly, it must be State, and so the Supreme Court, admitted, setting in that direction, is (Taney C. J.) seem to have considever seen struggling the eddy of dis- ered in Prigg vs. Pennsylvania. sent. To two distinguished instances True, it is there claimed, that in the among the Judiciary, I need only now reclamation of fugitives from labor, refer. In the case of Jack vs. Martin, State magistrates may act voluntarily, 14 Wend, 505, Chancellor Walworth though they cannot be compelled to most ably presented the views of act. But in what character do they which the present decision is but a act? Their official character is defeeble reiteration. And I have before rived from, has the extent given it me a manuscript copy of a most mas- by, and is to be exercised only in the terly discussion of the question, by mode prescribed by the State. It is Chief Justice Hornblower, in the the creature of the State. It subsists case of The State vs. the Sheriff of only at the will of the State. And the Burlington, delivered as the opinion of State having given no power of action the Supreme Court of New Jersey, at under an act of Congress, it would the February term, 1836, resulting in seem that the individual has no right a conclusion of the unconstitutionality to use his official character an power of Congressional legislation.* under it. And for this reason, the State of Illinois and many other States have expressly authorized and directed their Governors to act under the law

But, although practice, common understanding, and opinion, long continued, may give definitions to words, and put constructions upon language, lof 1793. differing from those which would oth- But the Supreme Court, in the Prigg erwise be received, yet they have case, having decided that a right of never been held to confer powers, not recaption exists; that the Constitution given in the constitution. This is a executes itself; that the ownership by mode of amending that instrument, the master follows the slave into a free not provided for in it. And the only safe rule, is to adhere to that written guarantee of our liberties, as it is, without resorting to such a fluctuating and uncertain guide.

State; that a master may retake his fugitive servant without legal process if he can do it without a breach of the peace, it necessarily follows that a State magistrate, who delivers him to the owner, becomes the owner's agent, by this adoption of his acts which the delivery and receipt imply. And thus his voluntary action is protected. In this view only can there be voluntary action by State officers in carrying out the act *And it is a fact, proper here to be referr- of Congress. They act, not as magised to, that at least two members of the pres- trates, but as citizens. They cannot ent Supra me Court of Ohio, have, within two use the years, publicly avowed their concurrence with power given them by the State views similar to those of the present decision. to carry out an act of Congress, for

The conclusion, therefore, at which the court arrives is, that the power of legislation upon this subject has not been conferred upon Congress, but is exclusive in the States, and as Ohio

the State did not give it for that purpose. And they are not officers of the United States, having no commis. sions from the President.

In this case, however, there is no right of recaption. The State of Maryland does not own Childs, and, therefore, unless the Constitution executes itself in this clause as well as the other, so that any citizen may make the arrest and delivery, and the demand may be made upon any one, a proposition to be considered shortly, there can be no legal arrest under this section of the act of Congress by State officers, and there can be no action by them in their official character, even if that proposition be correct.

The laws of Ohio do not authorize the issuing, by the Governor of Ohio, of a warrant for the arrest of a citizen. His power, derived from the Constitution and laws of the State, does not extend so far. And when a warrant, as in this case, is issued under the great seal of the State, countersigned by the Secretary of State, purporting to be "in the name and by the authority of the State of Ohio," and signed by the Governor in his official capacity, it is simply void. No statute of Ohio has authorized such a use of her name and seal, or of the offices of Governor and Secretary.

And this warrant is directed to the "Sheriff of Hamilton county." No law of Ohio has empowered this officer to act under the act of 1793. Nor is there any principle by which a right in the sheriff to arrest is sustainable. If the Governor's action is proper, even if he is protected, under the view that the voluntary execution of the act by a State officer, can be justified, yet the act, which requires or authorizes him to cause the arrest, does not sanction his employing the shrievalty of a county in this service. He may appoint an agent, but the latter must be a person, a citizen, and not a mere embodiment of power. If his voluntary action is proper, then Charles J. W. Smith, if requested by him, might arrest. But he must depend upon the individuality of the citizen, Smith; and cannot invoke the official power of the officer. For this official character is a creature of law,

and exists only for the purposes of its creation, and this is not one of them. So then, even if the citizen, Reuben Wood, could act in obedience to the law, or, as Governor, could issue the warrant, his right does not extend beyond the employment of an agent, and the warrant not being an instrument of procuration, or if it be, not being directed to a citizen competent to accept an agency of this character, but to an official power, unauthorized to accept it, the arrest is illegal. Charles J. W. Smith cannot execute the warrant, for it is not directed to him. The sheriff cannot, for no law of the State authorizes him.

It follows that the warrant, arrest, and delivery here are all in violation of law. And we come then to the only remaining ground upon which the detention of the prisoner by Wise and Zell, can be claimed, to wit: the doctrine maintained, as it would seem from Judge Wayne's opinion in the Prigg case, by Judge Baldwin, that the Constitution fully executes itself, and no legislation, State or National, is necessary. necessary. Without denying, for it is unnecessary, the applicability which that eminent jurist made of such a rule to the fugitive servant clause, there would seem to be grave and weighty reasons why it should not apply here. In that case, ownership may accompany the escape of the fugitive, a right of recaption without process of law may follow him, but here neither exists. An executive demand must first occur. Upon whom? The Constitution is silent, but reason and common sense would point to some officer to be designated by the sister State. Is the requisition of the Governor of Maryland an appointment of every man in Ohio, into whose hands it may come, as a special constable, to arrest William Childs? Is any citizen to take the requisition, make the arrest, then treat the demand as being upon him, and deliver up the prisoner? Or can the arrest be made by any body, in anticipation of a demand? It is said that an immense body of men were sworn in as special constables, in London, at the time of the great Chartist meeting, in 1848, but a constabulary force

comprising every elector of a great state like Ohio, or New York, was never heard of before. The truth is, that the Governor of Virginia, on account of whose scruples about delivering up an escaping criminal, this act of 1793 was passed, was right. The clause needed legislation: legislation pointing out upon whom the demand should be made, and who should cause the arrest. The idea that a demand made by so high an authority as the Executive of a State, was to be upon so indefinite, and vague, and inferior a personage as anybody indifferently into whose hands the requisition might come, never entered into the conception of the framers of that instrument. It was not so under the Confederation: then each State had to designate the person upon whom the demand was to be made. The clause is unchanged, and the necessary presumption is, that no change was made in order that the States might continue to select the officer most convenient to them.

But the delivery to Wise and Zell was not made by a citizen. The "Sheriff" it was, not the individual Smith, so that even if the latter could righfully treat the demand as made upon him, and make delivery, the

former cannot.

a court hesitate to release him?

Before passing finally from the consideration of this part of the case, it is proper to add that, as a citizen, I regard the provisions of the act of 1793, respecting fugitives from justice, as eminently wise and just, and should rejoice to see them adopted, and made binding upon the citizens of Ohio, as they have been in Illinois, and most of the States, by the passage of a State law, authorizing and directing our Governor to carry them into execution, and giving to him for that purpose full control over the Sheriffs, and other county officers.

But to pass from all considerations of constitutional law, is William Childs a fugitive from justice, within the meaning of the act of 1793 ? Has he fled from justice within the meaning of the Constitution? Can a citizen of one State commit a crime in another, return home in the regular course of business, without haste, and by a circuitous route, carry on a friendly correspondence with his victims, after his crime is discovered, and be a fugitive? It is not sufficient that the party is charged in one State, and found in another. The words of the Constitution are "a person charged in any State with treason, felony or other crime, It has been suggested, that as the who shall flee from justice, and be prisoner is now in possession of the found in another State," &c. The word agents of Maryland, the Court will "flee," means something. The paranot disturb them in returning with graph containing it was not inserted him that a constitutional right has carelessly. Had the Constitution read been enforced, and the Court will not thus, " a person charged in any State interfere upon habeas corpus, but leave with treason, felony, or other crime, Childs to his action against the Gov- who shall be found in another State,' ernor and Sheriff, who have acted il- &c., it would have meant just what legally. But one illustration is need- the State of Maryland now claims that ed to show the fallacy of this. True, it does as it stands. It will not do to the constitutional right may be exer- say that he who is charged with crime cised, but it must be in a constitution-is a fugitive, if he does not appear to al mode, that is, in such mode as State legislation shall point out. If a treaty, which, under the Constitution, is part of the supreme law-as much so as the Constitution-should provide for the extradition of fugitive criminals to France or Great Britain, by some offi cer to be named by Congress, and Congress failing to make designation, an arrest should be made by one of the marshals, and the prisoner be delivered to the agents of the foreign State, would

answer process. A citizen of Ohio, who can have no notice of proceedings in Maryland, cannot thus be made to

flee" from the justice of that State. And were this the true rule, the words "who shall flee from justice," would be rendered superfluous, for every man would be a fugitive, who was charged in one State, and found in another, whereas the framers of the Constitution added here the words, "who shall flee from justice."