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to the Supreme Court of Pennsylvania, with directions to carry into effect the judgment of this Court rendered upon the special verdict in favor of the plaintiff in error."

§ 754. There is some room to question whether Judge Story, throughout the whole of this Opinion, distinguished, in his own mind, the two theories for the legislation of Congress, one of which requires the second and the other the third or the fourth construction; whether he always recognized the power which was to be carried into effect by that legislation as an implied power in the national Government, to enforce a law binding the States as its subjects (the second construction), or as a power within the express judicial power of the United States in cases arising, under a law contained in the Constitution, between the private claimant, on the one hand, and the States or the national Government on the other (the third construction), or between the private claimant and the fugitive himself (according to the fourth construction). But his language on page 616 of the report will accord only with the doctrine included in the third construction. That theory is the only one which can be reconciled with all parts of his Opinion; and from his denial of legislative power in the States, as well as by inferences from the thirteenth Amendment, it is most reasonable to suppose that he regarded the case or controversy, thus within the judicial power, as one arising between the claimant owner and the national Government.

$755. It is doubtful whether even any one of Judge Story's associates agreed with him in his theory for the legislative power of Congress. In the judgment delivered in this case, all the members of the court then present, Chief Justice Taney, Justices Story, Thompson, Baldwin, Wayne, Daniel, and McLean, concurred. But the "Opinion of the Court" was in fact the Opinion of Justices Story and Wayne only. The other justices disagreed more or less with the principles advanced in it.' In seeking for authority on the question of con

116 Peters, 649, Judge Wayne says:-"Not a point has been decided in the cause now before this Court which has not been ruled in the courts of Massachusetts, New York, and Pennsylvania, and in other State courts. Judges have differed as to some of them, but the courts of the States have announced all of them with the consideration and solemnity of judicial conclusion. In cases, too, in

struction and of the power of Congress, the Opinion of each member of the court must be separately examined. With the exception of Judge Baldwin, the judges delivered Opinions severally; though at such length that they cannot be here inserted in full.

§ 756. Mr. Justice Wayne said, 16 Peters, 636 :-"I concur altogether in the Opinion of the Court as it has been given by my brother Story;" and of the remainder of his several Opinion (ib. 636–650), says (ib. 638):-" My object, and the only object which I have in view, in what I am about to say, is, to establish the position that Congress has the exclusive right to legislate upon this provision of the Constitution. I shall endeavor to prove it by the condition of the States when the Constitution was formed; by references to the provision itself; and to the Constitution generally.

"Let it be remembered, that the conventioners who formed the Constitution, were the representatives of equal sovereignties. That they were assembled to form a more perfect union than then existed between the States under the confederacy. That they co-operated to the same end; but that they were divided into two parties, having antagonist interests in respect to slavery.

"One of these parties, consisting of several States, required as a condition, upon which any constitution should be presented to the States for ratification, a full and perfect security for their slaves as property, when they fled into any of the States of the Union. The fact is not more plainly stated by me than it was put in the convention. The representatives from the non-slaveholding States assented to the condition."

which the decisions were appropriate because the points were raised by the record." This statement is surely liable to some exception. In no previous case was it asserted that the claimant might seize and remove the alleged fugitive without regard either to the law or Congress, or the local law of the State forum; not even by Judge Baldwin in Johnson v. Tompkins, for there the question appears to have been regarded as solely determinable by the law of the State. Ante, 8742.

While indicating his adherence to the theory that the Constitution is a federal compact between the States, and not the act of the integral people of the United States, Judge Wayne distinguishes this provision as the federative act of two parties the slaveholding and the non-slaveholding States (of that time, or those which should be such at the date of Prigg's case?) With as much propriety it might be said that the constituent parties were the States having western VOL. II.--31

On p. 641, Judge Wayne speaks of "the rights and obligations of the States under the provision," and says:-"It is admitted, that the provision raises what is properly termed a perfect obligation upon all of the States to abstain from doing anything which may interfere with the rights secured. Will this be so, if any part of what may be necessary to discharge the obligation is reserved by each State, to be done as each may think proper? The obligation is common to all of them, to the same extent. Its object is to secure the property of some of the States, and the individual rights of their citizens in that property. Shall, then, each State be permitted to legislate in its own way, according to its own judgment, and their separate notions, in what manner the obligation shall be discharged to those States to which it is due? To permit some of the States to say to the others, how the property included in the provision was to be secured by legislation, without the assent of the latter, would certainly be, to destroy the equality and force of the guarantee, and the equality of the States by which it was made. That was [642] not anticipated by the representatives of the slaveholding States in the convention, nor could it have been intended by the framers of the Constitution.

"Is it not more reasonable to infer, as the States were forming a government for themselves, to the extent of the powers conceded in the Constitution, to which legislative power was given to make all laws necessary and proper to carry into execution all powers vested in it-that they meant that the right for which some of the States stipulated, and to which all acceded, should, from the peculiar nature of the property in which only some of the States were interested-be carried into execution by that department of the general government in which they were all to be represented, the Congress of the United States.

"But is not this power of legislation by the States, upon

lands and the States not having any, or the States which were to be principally enriched by agriculture and the States which were to be enriched by manufac tures. The rights and obligations which correspond to such sectional divisions are only determined by political adjustments. Can the rights and obligations of private persons be judicially determined by such distinctions? Compare ante, § 504, 505, on the doctrine of equality of the States in respect to the Territories

this provision, a claim for each to use its discretion in interpreting the manner in which the guarantee shall be fulfilled?"

From the whole, it appears that while Judge Wayne maintained that the fugitive might be seized and removed under the provision alone, operating as private law, he also regarded the State in its political capacity as owing a duty under a law which Congress was bound to enforce, and in this adopted the second construction. Or, if he adopted any other construction, he regarded the several State as that "other person" upon whom the duty to deliver up is enjoined, and who, with the claimant, is a party in a case within the judicial power of the United States. It is also remarkable that Judge Wayne regards the State from which the fugitive escaped as the subject of the right correlative to this duty. See pages 644-646 of the report.

§ 757. Chief Justice Taney, in the beginning of his several Opinion, p. 626, says :-"But as the questions before us arise upon the construction of the Constitution of the United States, and as I do not assent to all the principles contained in the opinion just delivered, it is proper to state the points on which I differ." Judge Taney supports the fourth construction by affirming the owner's right to seize and remove the fugitive independently of statute regulations, and also by basing the power of Congress on the general power of maintaining whatever rights of private persons may exist under national law. On the same page his words are:-"I concur also in all that is contained in the opinion concerning the power of Congress to protect the citizens of the slaveholding States in the enjoyment of this right; and to provide by law an effectual remedy to enforce it and to inflict penalties upon those who shall violate its provisions; and no State is authorized to pass any law that comes in conflict in any respect with the remedy provided by Congress." In his argument in favor of concurrent action, judicial as well as legislative, on the part of the States, Judge Taney indicates his adoption of the same construction; particularly on page 628, where he says:-" Moreover, the clause of the Constitution of which we are speaking does not purport to be a distribution of the rights of sovereignty by which certain

enumerated powers of government and legislation are confided to the United States. It does not deal with that subject. It provides merely for the rights of individual citizens of different States and places them under the protection of the general government; in order more effectually to guard them from invasion by the States. There are other clauses in the Constitution in which other individual rights are provided for and secured in the like manner; and it has never been suggested that the States could not uphold and maintain them, because they were guaranteed by the Constitution of the United States. * * For example, the Constitution provides that no State shall pass any law impairing the obligation of contracts. This, like the right in question, is an individual right placed under the protection of the general government,' and in order to secure it Congress has passed a law authorizing a writ of error to the Supreme Court," &c.

Judge Taney's argument seems, briefly, to be this, thatsince the rights and obligations created by the provision are incident to relations of private persons under a law of national extent, the States must have the power to enforce that law as a rule of action for private persons within the several jurisdiction of the State.

§ 758. Mr. Justice Thompson said, p. 633:-"I concur in the judgment given by the court in this case. But not being able to yield my assent to all the doctrines embraced in the opinion, I will very briefly state the grounds on which my judgment is placed." Judge Thompson does not distinctly affirm the right of seizure and removal independently of the provisions of any statute (which doctrine was, however, necessarily implied in the judgment of the court), and says, p. 635:"If, as seems to be admitted, legislation is necessary to carry into effect the object of the Constitution, what becomes of the right where there is no law on the subject?" Yet he also says, p. 634, "The right of the master to the service of the slave according to the laws of the State from which he escaped, is a

'It would be more correct to say that such rights rest on the national munici pal law, which is to be maintained by the general Government as well as by the State Governments. On the same page, Judge Taney repeatedly uses the term, "individual right," meaning, apparently, the right of a private person.

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