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 declared 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."

1 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 declare 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

opinions on the constitutionality of the Act of Congress may be thought extra-judicial. They are, however, not so in any greater degree than were those in Prigg's case, and since it is the earliest judicial opinion opposed in all points to the doctrines maintained by Judge Story and other judges in that case, an abstract of Judge Smith's two Opinions, which, of course, are in their principal features alike, will here be made, accompanied by citations of the passages bearing most directly on the question considered in this chapter.

In the first Opinion, the judge begins (pp. 7-19) by a preliminary statement of his position as a State judge called on to decide on the validity of a custody under the warrant of a United States Commissioner, distinguishing that custody from one under the authority of a judicial officer of the federal Government, and denying that there was in this instance any conflict of jurisdiction.' Next, on pp. 19-22, he examines into the sufficiency of the warrant, concluding that it was defective, and gives his view of the position of State judiciaries in reference to powers assumed by the national Government (pp. 22–25). He then proceeds to examine the question of the constitutionality of the law of Congress, on p. 25:

"The Constitution of the United States is a peculiar instrument, and it has brought into existence and operation a peculiar system of government. But little if any aid is furnished in its construction by analogy. It is not merely a grant of powers. It not only confers powers upon the federal government, but it [26] guarantees rights to the States and to the citizens. It was not designed merely to provide a general government for all the States, but to provide security and protection for the States and people, who are parties to the compact by which it is created. Not only did it confer certain powers upon the general government, but it imposed solemn duties upon the government thereby created, and upon the States who were its creators. More than this, it solemnly enjoined upon both the State and general government, the exercise of certain powers and duties, and the abstaining by each, from the exercise of powers and functions exclusively pertaining to the other.

"It is an instrument of grants and covenants. Somewhat like an indenture of conveyance, it contains not only grants of powers, but covenants for the faithful observance of the stipulations therein contained. It creates three distinct departments of government, the executive, legislative, and judicial, and grants to each, the powers which it was designed that they should respectively exercise; and those powers not granted or prohibited to the States, it especially reserved to the States and the people. In addition to this, the States, parties to the instrument, by it, solemnly and mutually engaged that they would do certain things, and that certain things should not be done either by the government of the Union or of the States. The language of the Constitution is so peculiar, that the distinction between power to be conferred upon the government about to be created, and covenants entered into between the parties, as States, is obvious at a glance. Congress may exercise all the legislative power granted in the Constitution, but no other, because all others are especially reserved to the States and to the people. [27] In the same article which grants the legislative powers to Congress, and enumerates and defines them, is contained also a prohibitory covenant or compact by which the States have agreed not to do certain things, which, before, as sovereignties, they had an undoubted right to do. 'No State shall grant letters of marque and reprisal, coin money, emit bills of credit, make anything but gold and silver coin a legal tender, pass any bills of attainder, ex post facto law, or any law impairing the obligation of contracts,' &c.

"Now suppose, in violation of this compact, any State should do any of the things herein prohibited. Is it pretended that Congress has the right to make such acts on the part of the officers of the State penal? or by legislation, call such offending State to account? exclude it from the Union? expel its representatives from their seats? arrest its executive, its legislators and judges, and imprison them? The acts of such State would be simply void; and it would be the duty of all courts, both Federal and State, so to declare them. They would afford no protection to any person or officer acting under them, not because Congress has any legislative power to

denounce or abrogate them, but because they are in violation of the fundamental law.

"So also, in the same section are contained sundry prohi bitions upon the United States, among which is the following: The privilege of the writ of Habeas Corpus shall not be suspended, unless when in cases of rebellion or invasion the public service may require it.' Suppose, in a time of profound peace and quiet, the federal government should pass a law suspending the privileges of this writ, would the State governments have the power to call to account the federal officers who had violated the compact in this behalf? the Congress who passed, and the executive who approved it? Would the State courts be bound by it? Not at all. Such an act of Congress would simply be void, and it would be the duty of every State and Federal court so to pronounce it, and it would afford no protection to any officer, State or Federal, for refusing to obey such writ. I mention these illustrations to show that a great portion of our federal Constitution rests in compact, while still another rests in grant. Where powers are granted, they are to be exercised; where rights rest in compact, they have still the force of law; but the federal Government has no power to legislate upon them; they are to be obeyed and enforced by the parties to the compact, the States themselves."

The judge then sketches the history of the provision contained in the first section of the fourth Article, and describes the original proposal of a provision for the surrender of fugitive slaves, made in the Convention, August 28, 1787, as given in Madison Papers, 1447-8. On page 30 he then says:

"This history is important, as it not only justifies and requires a distinction to be taken between grants of power and articles of compact, but it clearly demonstrates that the convention all along discriminated between grants of power to the Government, and articles of compact between the States, and was extremely jealous and cautious in making such grants, and only did so when it was deemed absolutely necessary.

"Having now traced through this compact, and discovered the time and manner when it became coupled with a power,