partment, which may be the foundation of a power of legisla tion in Congress.'

§ 744. On hearing this case before the Court for the Correction of Errors, the judgment of the Supreme Court was affirmed. But it was affirmed solely on the ground that the plaintiff had by his pleas admitted that he was the slave of the defendant, and had escaped from her service, and that the defendant was therefore entitled to judgment in her favor, and the court expressly declined to pass upon the constitutionality of the law of Congress and of the statute of the State under which the action had been brought. Opinions were delivered on this occasion by only two members of the court, Senator Bishop and the Chancellor, Walworth. The Senator maintained the legislation of Congress.' He held that it was a carrying into

1On p. 322, Judge Nelson says:-"The above view [meaning, apparently, view of the power of Congress] is in strict accordance with the decisions of this court upon the clause in question, so far as it has come under consideration, and also with those under the analogous provision respecting fugitives from justice," and refers to Glen v. Hodges, 9 Johns. 67, in which case, however, there was no opinion as to the basis of the legislative power of Congress. Nor does the question appear ever to have been discussed in New York, in any case of a fugitive from justice.

* 14 Wendell, 507 and note. For this reason the opinions of the Chancellor and Senator Bishop are here placed in a note as having been extra-judicial; though, if the court was right in its position, it would seem that Judge Nelson's opinion in the court below was, likewise, extra-judicial. If the Court for the Correction of Errors meant to affirm the right of the owner to a delivery of the slave, independently of the law of Congress and the State statute, they thereby construed the provision to operate as private law, and so supported the fourth construction.

His language, on p. 531 of the Report, is:-" In arriving at a conclusion upon these points, it becomes necessary to inquire what powers have been conferred upon Congress by the Constitution; and, if upon such inquiry it be found that the law of Congress in reference to fugitive slaves is recognized by the express or implied powers of the Constitution, whether the State law must yield to the law of Congress." After quoting the constitutional provision, Senator Bishop said, "The first Article, section eight, and last clause of the Constitution, authorizes Congress to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by the Constitution in the Government of the United States, or in any department or officer thereof; not only giving to Congress certain powers there enumerated, but giving authority to legislate upon an infinite variety of subjects which the framers of the Constitution evidently anticipated would arise under it when the practical operation of the Government was more fully and completely developed. The doctrine laid down by the Federalist is, that the Constitution, in defining the power of Congress, evidently specified those which were matters of immediate and general interest, leaving Congress to regulate other matters by law, as the exigency of the case might require. Upon the authority of the foregoing clauses of the Constitution, Congress passed a law," &c. It will be noticed that he refers to the Federalist as attributing powers of legislation, as to matters not specified, to Congress in the

execution of a power vested by the Constitution in the Government of the United States, or in some department or officer thereof. As he did not affirm that the power vested was a power in the national Government, nor say that the provision was a rule acting on that Government, or on States as its subjects, he may have intended a power vested in the judiciary to apply a rule of private law contained in this provision, and so have supported the fourth construction. His language necessarily indicates an adoption of either the third or the fourth.

The Opinion delivered by the Chancellor on this occasion has been generally misunderstood. He did not, as commonly misrepresented, maintain the first of the four constructions, nor view the provision as an international treaty to be fulfilled only by the several political action of the States into which fugitives might escape. He did not deny that Congress might legislate, if it should be necessary to secure to the owner the right guaranteed by the Constitution. His doctrine is, that the Act of Congress could not prevent a trial of the master's right before a jury, whenever an appeal should be made to the State judiciary against his claim to the person of an alleged fugitive. The main point of his Opinion was his assertion of concurrent State jurisdiction, and particularly of the validity of the State law under which the case had arisen. But in the present inquiry it is only necessary to refer to the Chancellor's opinion as indicating his construction of the provision.'

first instance; that is independently of the existence of some power in the national Government or some department or officer thereof. It would have been better had the Senator pointed out the passage in the Federalist in which he had discovered this doctrine.

1 14 Wendell, 525, the Chancellor said:-"I have looked in vain among the powers delegated to Congress by the Constitution, for any general authority to that body to legislate on this subject. It certainly is not contained in any express grant of [526] power, and it does not appear to be embraced in the general grant of incidental powers contained in the last clause of the Constitution relative to the powers of Congress. Const., Art. I., § 8, sub. 17. The law of the United States respecting fugitives from justice and fugitive slaves is not a law to carry into effect any of the powers expressly granted to Congress or any other power vested by the Constitution in the Government of the United States, or any department or officer thereof.' It appears to be a law to regulate the exercise of the rights secured to the individual States or the inhabitants thereof by the second section of the fourth Article of the Constitution; which section, like the ninth section of the first Article, merely imposes a restriction and a duty upon other States and individuals in relation to such rights, but vests no power in the federal Government, or any department or officer thereof, except the judicial power of declaring and en

It will be seen from the passages cited from his Opinion, that the Chancellor clearly supported the fourth construction, regarding the provision as continuing, independently of either State or national legislation, the relation of master and slave in the State into which the fugitive had escaped; so that the master might even lawfully seize and remove his slave from the State in which he should be found; though liable always to account to the State for such action by showing his title before its judicial tribunals under the forms of procedure prescribed by the local law. But the master's custody, on such

forcing the rights secured by the Constitution. The Act of February, 1793, conferring ministerial powers upon the State magistrates, and regulating the exercise of the powers of the State executive, is certainly not a law to carry into effect the judicial power of the United States, which power cannot be vested in State officers. If the provisions of the Constitution, as to fugitive slaves and fugitives from justice, could not be carried into effect without the actual legislation of Congress on the subject, perhaps a power of federal legislation might be implied from the Constitution itself; but no such power can be inferred from the mere fact that it may be more convenient that Congress should exercise the power, than that it should be exercised by the State Legislatures. In these cases of fugitive slaves and fugitives from justice, it is not certain that any legislation whatever is necessary, or was contemplated by the framers of the Constitution. The provision as to persons escaping from servitude in one State, into another, appears, by their journals, to have been adopted by a unanimous vote of the Convention. At that time the existence of involuntary servitude, or the relation of master and servant, was known and recognized by the laws of every State in the Union, except Massachusetts, and the legal right of recaption existed in all as part of the customary or common [527] law of the whole confederacy. On the other hand the common law writ of homine replegiando, for the purpose of trying the right of the master to the services of the slave, was well known to the law of the several States, and was in constant use for that purpose, except so far as it had been superseded by the more summary proceeding by habeas corpus, or by local legislation. The object of the framers of the Constitution, therefore, was not to provide a new mode by which the master might be enabled to recover the services of the fugitive slave, but merely to restrain the exercise of a power which the State Legislatures, respectively, would otherwise have possessed to deprive the master of such preexisting right of recaption. Under this provision of the constitution, even without any legislation on the subject, the right of the master to reclaim the fugitive slave is fully secured so as to give him a valid claim in damages against any one who interferes with the right" (citing Glen v. Hodges, 9 Johns. R. 67, as to the same effect). And on the same page:- "The judicial tribunals of the respective States are bound by their oaths to protect the master's constitutional right of recaption against any improper legislation, and against the unauthorized acts of individuals by which such right may be impaired; and the Supreme Court of the United States, as the tribunal of dernier resort on such a question, is possessed of ample powers to correct any erroneous decision which might be made against the right of the master." And on p. 528-"The Constitution of the United States having secured to the master the right of recaption, it is, of course, a good defence to the present suit if it is admitted on the record that the plaintiff owed service or labor to the defendant in another State, and had escaped from such servitude without reference to the validity of the Act of Congress, or of any State Legis lature on the subject."

seizure, would always be lawful, so that whoever should rescue such slave from that custody would do it at the risk of an action by such master for damages.'

$ 745. In February Term, 1836, before the New Jersey Superior Court, was the case, The State v. The Sheriff of Burlington, otherwise called Helmsley's case, which has already been noted in connection with the question of the validity of the statute of the State.'

The Chancellor's doctrine seems to have been also that of the Committee on the Judiciary of the Massachusetts House of Representatives, which, in 1837, reported "on the expediency of restoring the writ of homine replegiando, or of providing some other process by which one under personal restraint may try his liberty before a jury." See Am. Jurist, vol. XVII., p. 104. The bill reported by the Committee passed both branches of the Legislature without objection. Ibid. 95. See note, ante, p. 32.

Ante, p. 64. The portion of Chief Justice Hornblower's Opinion which bears most directly on the present inquiry is as follows:

By the 2d clause of the 6th Art, of the Constitution of the United States, it is declared that the Constitution and laws of the United States 'made in pursuance thereof' shall be the SUPREME law of the land, and that the judges in every State shall be bound thereby, anything in the Constitution or laws of any State to the contrary notwithstanding.' If, then, Congress has a right to legislate on this subject, the Act of Congress must prevail, and the statute of New Jersey is no better than a dead letter. They cannot both be the SUPREME law of the land, and constitute the rule of action in one and the same matter. The judges of this State are bound by the Act of Congress, anything in the constitution or law of this State to the contrary notwithstanding. If both acts were precisely the same in all their provisions and sanctions, yet a proceeding in conformity therewith would derive all its authority from the Act of Congress, and not from the law of this State. But the provisions of the two statutes are very dissimilar, and as the proceedings in this case profess to be in pursuance of the act of this State, it follows, of course, upon the supposition that Congress has a right to legislate in the matter, that the prisoner has been unlawfully committed, and ought to be discharged out of the custody of the Sheriff. Upon this ground I might refrain from all further discussion, and render my judgment at once; but then I should be understood as fully admitting the right of Congress to legislate upon the subject—an admission I am by no means prepared to make, any more than I am to express a contrary opinion. I intend only to assign the reasons why I do not at once admit the supremacy of the Act of Congress, reserving to myself the right of forming and expressing a final decision hereafter, if in this or in any other case such decision shall become necessary.

"The 1st and 2d sections of the 4th Article of the Constitution of the United States are declarative of certain international principles agreed upon between the parties to that instrument."

Here the judge cites the four several provisions, and proceeds to say:—

"By adopting the Constitution, the several States became bound to carry out in practice these several constitutional principles; but whether the manner of doing so is to be regulated by State legislation, or by general Acts of Congress, is the question. The framers of the Constitution thought proper (and it is to be supposed that they did so for some sufficient reason) to arrange the four particulars, above mentioned, under two distinct sections. By the first it is provided that full faith and credit shall be given in each State to the public acts, records, &c., of every other State. But it does not stop here; if it did, this provision would stand in the same category with those contained in the next section, and

Although in this case the constitutionality of the Act of Congress was not before the court, yet it was hardly possible to determine the legality of the custody claimed in that case without reference to the effect of the provision in the Constitution. As an authority on this question of construction,

there would seem to have been no reason for the distribution of these principles into distinct sections. But it is added:-And the Congress may, by general laws, prescribe the manner in which said acts, &c., shall be proved, and the effect thereof.' Then follows the 2d section, embracing the other three principles above mentioned, but without annexing to them, or to either of them, the right of legislation by the general Government. Hence, there seems to arise a fair argument that the framers of the Constitution had no idea that the simple statement of these several international stipulations would confer on Congress any legislative powers concerning them; but as they designed to subject the first particular to the control and regulation of the general Government, they arranged it under a distinct section, and in express terms annexed to it the power of legislation, and then threw the other three stipulations together in another section of the instrument without saying anything more, because no such power was intended to be given to Congress respecting them. A different construction would expose the authors of the Constitution to the charge of encumbering it with a useless provision, worse, indeed, than useless, because, if simply writing down and adopting the several conventional principles comprehended in the second section carried along with them a right in the general Government to provide by law for the manner in which they should be executed, the express grant of such a power in the preceding section was not only useless, but calculated to create a doubt and uncertainty as to the right of the Congress to legislate on matters contained in the second section. For if the power of legislation is impliedly annexed to the simple stipu lations of the 2d section, it is difficult to perceive why the same implication would not have arisen upon the simple declaration that full faith and credit should be given to the public acts of one State, in the courts of every other State. That the Constitution has, in express terms, given the right of legislation to Congress in reference to one of the four conventional items above mentioned, and remained silent in respect to the others, is, to my mind, a strong argument that no such power was intended to be given in connection with them.

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Again: Are there not sound political as well as judicial reasons for granting to Congress the power of legislation in the one case, and withholding it in the others? No one State could prescribe the manner in which its own public acts, records, and judicial proceedings should be proved in the courts of another State. The rule of evidence is lex loci, and every court might have required a different mode of proof. This would have been very inconvenient. It was desirable, therefore, that there should be one uniform rule throughout the country on that subject. But the manner and form in which public acts and records should be exemplified was a matter about which Congress may safely legislate without discomposing the pride and complacency of State sovereignty, and without the danger of coming into conflict with State institutions and local jurisprudence. Not so in respect to the other stipulations. Legislation by Congress, regulating the manner in which a citizen of one State should be secured and protected in the enjoyment of his citizenship in another, would cover a broad field, and lead to the most unhappy results. So, too, general Acts of Congress, prescribing by what persons or officers, with or without process, refugees from justice, or persons escaping from labor may be seized or arrested in one State, and forcibly carried into another, can hardly fail to bring the general Government into conflict with the State authorities, and the prejudices of local communities. Such, to some extent, has been the case in this and other States. A constructive power of legis lation in Congress is not a favorite doctrine of the present day. By a large portion of the country, the right of Congress to legislate on the subject of slavery at