fugitive slaves shall be treated in the States into which they may escape in the same manner as they might be in the State from which they had fled. On p. 596: "This is the spirit of the law, policy and feeling of Pennsylvania, as declared by the Supreme Court; and if the acts and proceedings of the inferior courts and judges in opposition to the rights of the owners of fugitive slaves [referring to the writ de hom. rep. in Wright v. Deacon] are quashed as illegal, of what nature must be the lawless conduct of individuals who, by an assumed authority, undertake to obstruct the execution of the supreme law of the land?"

The portion of Judge Baldwin's charge' immediately fol

"The Supreme Court declares that the Constitution of the United States would never have been formed or assented to by the southern States without some provision for securing their property in slaves. Look at the first Article and you will see that slaves are not only property as chattels, but political property, which confers the highest and most sacred political rights of the States, on the inviolability of which the very existence of this Government depends.

"The apportionment among the several States, comprising this Union, of their representatives in Congress.

"The apportionment of direct taxes among the several States.

"The number of electoral votes for President and Vice-President to which they shall respectively be entitled.

"The basis of these rights is, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians, not taxed, three fifths of all other persons.' So that, for all these great objects, five slaves are, in federal numbers, equal to three freemen. You thus see that in protecting the rights of a master in the property of a slave, the Constitution guarantees the highest rights of the respective States, of which each has a right to avail itself, and which each enjoys in proportion to the number of slaves within its boundaries.

"This was a concession to the southern States; but it was not without its equivalent to the other States, especially the small ones-the basis of representation in the Senate of the United States was perfect equality, each being entitled to two senators-Delaware had the same weight in the Senate as Virginia.

"Thus you see that the foundations of the Government are laid, and rest on the rights of property in slaves. The whole structure must fall by disturbing the corner-stone. If federal numbers cease to be respected or held sacred in questions of property or government, the rights of the States must disappear, and the Government and the Union dissolve by the prostration of its laws before the usurped authority of individuals.

"We shall pursue this subject no further, in its bearing upon the political rights of the States composing the Union. In recalling your attention to these rights, which are the subject of this controversy, we declare to you as the law of the case that they are inherent and inalienable, so recognized by all our fundamental laws.

"The Constitution of the State or Union is not the source of these rights, or the others to which we have referred you; they existed in their plenitude before any constitutions, which do not create but protect and secure them against any violation, by the Legislatures or courts, in making, expounding, or administering laws.

"The nature of this case, its history, and the course of the argument, call on

lowing the last quotation is remarkable as the development of that peculiar style of argument, on questions of this class, which has been adopted by more than one other distinguished judge' since it was originated by Chief Justice Tilghman. It is given in the note below.

Independently of the erroneous citation of the two cases upon which the earlier part of the argument is founded, it is doubtful whether Judge Baldwin did not intend to rest the owner's right to seize and remove the slave upon the several law of Pennsylvania, rather than on the provision acting as national law in all the States.

§743. In the case of Jack v. Martin (1834), 12 Wendell, Chief Justice Nelson, delivering the opinion of the Supreme Court of New York, seems to have regarded the provision as taking effect directly on private persons in the first instance, according to the fourth construction, while yet also maintaining the second or the third construction as the basis of the power of Congress. Judge Nelson not only regarded the right of seizure, allowed by the statute for the purpose of making a claim, as a right existing by the provision itself, but also spoke of the right of seizure and removal as part of the effect of the clause, which, in his view, carried the rights of the owner into

us to declare explicitly what is the effect of a constitutional protection or guarantee of any right, or the injunction of any duty. The twenty-sixth section of the bill of rights in the Constitution of Pennsylvania is in these words: To guard against transgressions of the high powers we have delegated, we declare [we, the people of Pennsylvania,] that everything in this article is excepted out of the general powers of Government, and shall forever remain inviolate.' A higher power declares this Constitution, and the laws of the United States which shall be made in pursuance thereof, shall be the supreme laws of the land, and the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' Const. U. S. Art. 6, clause 2.

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An amendment of the Constitution is of still higher authority, for it has the effect of controlling and repealing the express provisions of the Constitution authorizing a power to be exercised, by a declaration that it shall not be construed to give such power. 3 Dall. 382.

"We have stated to you the various provisions of the Constitution of the United States, and its amendments, as well as that of this State; you see their authority and obligation to be supreme over any laws or regulations which are repugnant to them, or which violate, infringe, or impair any right thereby secured; the conclusions which result are too obvious to be more than stated.

"Jack was the property of the plaintiff, who had a right to possess or protect his slave or servant, whom he had a right to seize and take away to his residence in New Jersey by force, if force was necessary; he had a right to secure him from escape or rescue by any means not cruel or wantonly severe."

As by Wayne, J., 16 Peters', 645.

the State in which the slave had fled. On page 311, he said: -"The right of the master to take the slave without a warrant, according to the provisions of the statute of 1793, would appear to follow as a necessary consequence from the undoubted position that under this clause of the Constitution the right and title of the owner to the service of the slave is as entire and perfect within the jurisdiction of the State to which he has fled as it was in the one from which he escaped. Such seizure would be at the peril of the party; and if a freeman was taken, he would be answerable like any other trespasser or kidnapper." If this is to be understood in the full extent of the words it would justify the owner, not only in the seizure, but also in removing the slave without making any application to any civil authority within the jurisdiction. In the instance which had actually come before the court, however, the seizure had been followed by the claimant's bringing the slave before a State magistrate, according to the terms of the Act of Congress.

In maintaining the validity and exclusive operation of the Act of Congress, Judge Nelson also used expressions which may support the second construction, but which harmonize best with that adaptation of the third construction which attributes to the national Government a duty correlative with the claimant's right. On page 319 of the report, the Chief Justice said: "It [the provision] implies a doubt whether they [the States] would, in the exercise of unrestrained power, regard the rights of the owner or properly protect them by local legislation.' The object of the provision being thus pal

So on page 311, Judge Nelson said:-"The idea that the framers of the Constitution intended to leave the legislation of this subject to the States, when the provision itself obviously sprung out of their fears of partial and unjust legislation by the States in respect to it, cannot be admitted." It is admitted on all hands that if this provision had not been introduced into the Constitution the owner's claim to a delivery of his fugitive slave would have depended entirely upon the several will of the State into which he might have escaped. Yet, in these places the judge speaks of the owner's claim as a legal right, independently of this provision, or as one which the State would have been under a legal obligation to recognize. The jurists of the slaveholding States insist that all states are bound by comity to allow the owner to recapture the fugitive slave. But that is matter of opinion as to what ought to be a doctrine of international law. It is nothing to the purpose here. Any man may hold that opinion; but a judge being of that opinion has no ground for declaring that the claim, as against a non

pable, it should receive a construction that will operate most effectually to accomplish the end consistently with the terms of it. This, we may reasonably infer, will be in accordance with the intent of the makers, and will regard with becoming respect the rights of those especially interested in its execu tion. Which power, then, was it intended should be charged with the duty of prescribing the mode in which this injunction of the Constitution should be carried into effect, and of enforcing its execution-the States or Congress? It is very clear, if left to the former, the great purpose of the provision might be defeated in spite of the Constitution. The States might omit any legislation on the subject, and thereby leave the owner without any known means by which to assert his rights." And on page 320:-"I am satisfied, from an attentive perusal of the provision, that a fair interpretation of the terms in which it is expressed not only prohibits the States from legislation upon the question involving the owner's right to this species of labor, but that it is intended to give Congress the power to provide the delivering up of the slave." And on page 321:-"It is obvious that if Congress have not the power to prescribe the mode and manner of the 'delivering up,' and thereby provide the means of enforcing the execution of the rights secured by this provision, its solemn guaranty may be wholly disregarded in defiance of the Government. This power seems indispensable to enable it faithfully to discharge the obligation to the States and citizens interested. The subject itself, as well from its nature as from the persons alone interested in it, seems appropriately to belong to the national Government; it concerns rights held under the laws to be enforced within the jurisdiction of States other than those in which the citizens generally interested in them reside, and on a subject too well known deeply to affect the public mind, and in respect to which distinct and adverse interests and views had already appeared in the Union. It was therefore fit and

slaveholding State, is founded on a legal right, or for intimating that, in the absence of any provision in the Constitution, the legislation of a State in respect to fugitive slaves within its borders can be called "partial and unjust," when it refuses to recognize the claims of a pursuing master. The same confusion of ideas prevails in the argument of Judge Baldwin, already noted.

proper that the whole matter should be placed under the control of Congress, where the rights and interests of the different sections of the country liable to be influenced by local and peculiar causes would be regulated and enforced with an impartial regard to all.”

This language would accord best with the opinion that the provision is not, in itself, private law determining rights and obligations of private persons in a legal relation, but that some legislation is necessary before it can have such effect.

Judge Nelson attributes power to Congress without saying clearly that it is part of the power granted, in the last clause of the eighth section of the first Article, "to carry into execution" a power vested by this Constitution in the Government of the United States, or in some "department or officer thereof." He makes no allusion to any power of the judiciary in such "case" or "controversy." But the judge plainly indicates the national Government as the person upon whom the provision imposes an obligation correlative to the claimant's right. He observes that "its "-the provision's-" solemn guaranty may be wholly disregarded" (not saying by whom) "in defiance of the Government," meaning, apparently, the national Government, and says that power in Congress "to prescribe the mode and manner of the delivering up, and thereby provide the means of enforcing the execution of the rights secured by this provision" is "indispensable to enable it" (i.e., the Government) faithfully to discharge the obligation to the States' and citizens interested." He further says that "the subject itself" "seems appropriately to belong to the national Government."

Judge Nelson may, on the whole, be taken to support that adaptation of the third construction under which the provision creates a relation of right and obligation between the claimant and the national Government, and under which a power is attributed to the integral Government, not to the judiciary de

Here appears the idea which also prevails in the portion of Judge Baldwin's opinion which is given in the note ante, p. 445, that the State from which the fugitive from labor escaped is a party having a right under this provision.

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