year 1791; and as we historically know from the message of President Washington and the public documents of that period, it was the immediate cause of the passing of the act of 1793, which designated the person (the State executive) upon whom the demand should be made, and the mode and proofs upon and in which it should be made. From that time down to the present hour, not a doubt has been breathed upon the constitutionality of this part of the act; and every executive in the Union has constantly acted upon and admitted its validity. Yet the right and the duty are dependent, as to their mode of execution, solely on the act of Congress; and but for that, they would remain a nominal right and passive duty; the execution of which being intrusted to and required of no one in particular, all persons might be at liberty to disregard it. This very acquiescence, under such circumstances, of the highest State functionaries, is a most decisive proof of the universality of the opinion that the [621] act is founded in a just construction of the Constitution; independent of the vast influence which it ought to have as a contemporaneous exposition of the provisions, by those who were its immediate framers, or intimately connected with its adoption.

"The same uniformity of acquiescence in the validity of the act of 1793, upon the other part of the subject-matter, that of fugitive slaves, has prevailed throughout the whole Union. until a comparatively recent period. Nay; being from its nature and character more readily susceptible of being brought into controversy, in courts of justice, than the former, and of enlisting in opposition to it the feelings, and it may be the prejudices of some portions of the non-slaveholding States; it has naturally been brought under adjudication in several States in the Union, and particularly in Massachusetts, New York, and Pennsylvania, and on all these occasions its validity has been affirmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle, 62; Glen v. Hodges, 9 Johns. Rep. 67; Jack v. Martin, 12 Wend. Rep. 311; S. C., 14 Wend. Rep. 507; and Com. v. Griffin, 2 Pick. Rep. 11; are directly in point. So far as the judges of the courts of the United States have been called upon to enforce it, and to grant the certificate required by it,

it is believed that it has been uniformly recognized as a binding and valid law, and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction, such long acquiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity, would, in our judgment entitle the question to be considered at rest, unless, indeed, the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation, and of national operations. Congress, the executive, and the judiciary have upon various occasions acted upon this as a sound and reasonable doctrine. Especially did this Court in the cases of Stuart v. Laird, 1 Cranch Rep. 299; and Martin v. Hunter, 1 Wheat. Rep. 304; and in Cohen v. The Commonwealth of Virginia, 6 Wheat. Rep. 264: rely upon contemporaneous expositions of the Constitution, and long acquiescence in it with great confidence, in the discussion of questions of a highly interesting and important nature.

"But we do not wish to rest our present opinion upon the ground [622] either of contemporaneous exposition, or long acquiescence, or even practical action; neither do we mean to admit the question to be of a doubtful nature, and therefore as properly calling for the aid of such considerations. On the contrary, our judgment would be the same if the question were entirely new, and the act of Congress were of recent enactment. We hold the act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon State magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon State magistrates, while a difference of opinion has existed, and may exist still on the point, in different States, whether State magistrates are bound to act under it; none is entertained by this Court that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation."

§ 753. The residue of the Opinion is occupied with a question which is to be considered in a later portion of this treatise. But it is given here because it contains some passages which

indicate Judge Story's idea of the "nature of the power" in Congress, and "the true objects to be attained by it."

"The remaining question is, whether the power of legislation upon this subject is exclusive in the national government, or concurrent in the States, until it is exercised by Congress. In our opinion it is exclusive; and we shall now proceed briefly to state our reasons for that opinion. The doctrine stated by this Court, in Sturgis v. Crowninshield, 4 Wheat. Rep. 122, 193, contains the true, although not the sole rule or consideration, which is applicable to this particular subject. 'Wherever,' said Mr. Chief Justice Marshall, in delivering the opinion of the Court, 'the terms in which a power is granted to Congress, or the nature of the power require that it should be exercised exclusively by Congress, the subject is as completely taken from the State legislatures as if they had been forbidden to act.' The nature of the power, and the true objects to be attained by it, are then as important to be weighed, in considering the question of its exclusiveness, as the words in which it is granted.

"In the first place, it is material to state (what has been already incidentally hinted at), that the right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever State of the Union they may be found, and of course the corresponding power in Congress to use the appropriate means to enforce the right and duty, derive their whole validity and obligation exclusively from the Constitution of the United States; and are there, for the first time, recognized and established in that peculiar character. [623] Before the adoption of the Constitution, no State had any power whatsoever over the subject, except within its own territorial limits, and could not bind the sovereignty or the legislation of other States. Whenever the right was acknowledged or the duty enforced in any State, it was as a matter of comity and favor, and not as a matter of strict moral, political, or international obligation or duty. Under the Constitution it is recognized as an absolute, positive, right and duty, pervading the whole Union with an equal and supreme force, uncontrolled and uncontrollable by State sovereignty or State legislation. It is, therefore, in a just sense

a new and positive right, independent of comity, confined to no territorial limits, and bounded by no State institutions or policy. The natural inference deducible from this consideration certainly is, in the absence of any positive delegation of power to the State legislatures, that it belongs to the legislative department of the national government, to which it owes its origin and establishment.' It would be a strange anomaly and forced construction to suppose that the national government meant to rely for the due fulfillment of its own proper duties and the rights which it intended to secure, upon State legislation, and not upon that of the Union. A fortiori, it would be more objectionable to suppose that a power which was to be the same throughout the Union should be confided to State sovereignty, which could not rightfully act beyond its own territorial limits.

"In the next place, the nature of the provision and the objects to be attained by it, require that it should be controlled by one and the same will, and act uniformly by the same system of regulations throughout the Union. If, then, the States have a right, in the absence of legislation by Congress, to act upon the subject, each State is at liberty to prescribe just such regulations as suit its own policy, local convenience, and local feelings. The legislation of one State may not only be different from, but utterly repugnant to and incompatible with that of another. The time, and mode, and limitation of the remedy; the proofs of the title, and all other incidents applicable thereto, may be prescribed in one State, which are rejected or disclaimed in another. One State may require the owner to sue in one mode, another in a different mode. One State may make a statute of limitations as to the remedy, in its own tribunals, short and summary; another [624] may prolong the period, and yet restrict the proofs; nay, some States may utterly refuse to act upon the subject at all; and others may refuse to open its Courts

What is this "it" which owes its existence to the national Government? Apparently, the antecedent is the "new and positive right" which is " recognized under the Constitution." But did Judge Story mean to say that this new and positive right owes its origin and establishment" to the national Government? Does the Constitution owe its origin and establishment to the national Government?

to any remedies in rem, because they would interfere with their own domestic policy, institutions, or habits. The right, therefore, would never, in a practical sense, be the same in all the States. It would have no unity of purpose, or uniformity of operation. The duty might be enforced in some States; retarded or limited in others; and denied as compulsory in many, if not in all. Consequences like these must have been foreseen as very likely to occur in the non-slaveholding States, where legislation, if not silent on the subject, and purely voluntary, could scarcely be presumed to be favorable to the exercise of the rights of the owner.

"It is scarcely conceivable that the slaveholding States would have been satisfied with leaving to the legislation of the non-slaveholding States a power of regulation, in the absence of that of Congress, which would or might practically amount to a power to destroy the rights of the owner. If the argument, therefore, of a concurrent power in the States to act upon the subject-matter in the absence of legislation by Congress, be well founded; then, if Congress had never acted at all; or if the act of Congress should be repealed without providing a substitute, there would be a resulting authority in each of the States to regulate the whole subject at its pleasure; and to dole out its own remedial justice, or withhold it at its pleasure, and according to its own views of policy and expediency. Surely such a state of things never could have been intended, under such a solemn guarantee of right and duty. On the other hand, construe the right of legislation as exclusive in Congress, and every evil and every danger vanishes. The right and the duty are then co-extensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from State regulation and control, through however many States he may pass with his fugitive slave in his possession, in transitu, to his own domicile. But, upon the other supposition, the moment he passes the State line he becomes amenable to the laws of another sovereignty, whose regulations may greatly embarrass or delay the exercise of his rights; and even be repugnant to those of the State where he first arrested