sary to make the claim efficacious and commensurate with the constitutional provision. But it must be done through the court over which Congress have power and through their instrumentality; otherwise the claim might be rendered abortive by the decisions of State courts pursuing their local policy. The claim ought primarily to be asserted in courts whose decisions would conclude the subject of dispute, and not in a foreign forum adverse to the whole process, if it pursued the feelings and policy of its own laws and the principles of the common law. The provisions of the Act of Congress must be pursued in the tribunals of the United States. There they meet with no warfare by local legislation or municipal peculiarities. And the person claiming the services of the fugitive is in the forum of that sovereignty and jurisdiction under which his claim is made. Within the terms of the compact, and within the Act of Congress, we acknowledge the validity of the claim when made in the proper forum. But outside the compact we breathe more freely. We feel the genial influence of the common law on this subject," &c.

In this case, the Pennsylvania court seems to be endeavoring to follow out the doctrine of Prigg's case. But the view taken by Judge Coulter accords best with the fourth construction. The idea that the claim contemplated in the provision can only be made when the owner demands the slave, as a tertium quid, from some antagonist party, is the same which Judge Story advanced, 16 Peters, p. 616 (ante, p. 467). But Judge Story found this antagonist party in the national Government. Under the first and second constructions the claim is against the State in which the fugitive is found, and which, under those constructions, is to make the delivery. There is probably no other judicial authority to be found which supports the view taken in this case, that is, that some private person in possession of the slave is by the Constitution required to deliver him up on claim.'

The court seems to hold that the power of Congress to legislate is founded upon the existence of such a case within the judicial power of the United States. But according to the same opinion there is no such case unless the supposed slave is concealed or detained as property by some third party. If, then, the supposed slave is merely acting as a free person, the Act of Congress cannot apply to him. His owner has no remedy given him by Congress and can have none.

In holding that the claim which arises under the Constitution is a case within the judicial power, and that the legislation of Congress is based on the purpose of carrying this power into effect, this Opinion agrees with the fourth construction and with that adaptation of the third construction which was held by Story to be the basis of the power of Congress.

§ 765. In State v. Hoppess (1845), 2 West. L. Journal, 289, the defendant, on the return to the writ of habeas corpus, returned that he had seized, as a fugitive from his service, the person whom he was required to produce, and had brought him before a justice, for the purpose of proving his claim according to the law of Congress. Judge Read, of the Supreme Court of Ohio, in remanding the supposed fugitive to the custody of the defendant, said, in respect to the objection that the provision "confers no power upon Congress to legislate upon the subject, but only imposes a duty upon the States, to be executed by their own laws ""When the Constitution imposes a duty or secures a right, Congress is empowered to enact such laws as are necessary to enforce the one and secure the other. The subject of slavery is one of irritation and difficulty; and if it were left to the States to secure the rights of the master to his fugitive slave, the provision that the escape should not discharge the right to service would probably be of little worth," &c. "In this way the compromise might be totally evaded, or its entire spirit violated. And if Congress should attempt to enforce it, it would be by acting on the States." Then, after saying that this was the idea of the confederation:-“Our Constitution remedies this defect by bringing the powers of the general Government to act upon individuals directly, instead of States. Hence, the powers of Congress should be construed to remedy the evil and advance the intention of the framers of the Constitution. If this were wholly a new question, I should decide that Congress not only had the power, but that it is a duty imposed upon Congress to legislate upon this subject. But this is not an open question," &c. The idea seems to be, that the duty correlative to the owner's right is not a duty of the State; but the judge does not distinguish whether Congress gets the power through the power of the judiciary department

over a case arising between two private persons or between the owner and the general Government; or by a more immediate process of implication.'

In Driskill v. Parrish (1847), 3 McLean, 631, the action was for the penalty under the Act of Congress for obstructing the claimant and for harboring, &c. A portion of Judge McLean's charge' is important in the present inquiry as affirm. ing the right of the owner to seize and remove the fugitive independently of legislation, which doctrine it is herein supposed agrees best with the fourth construction."

766. In the judicial opinions which, in cases arising under the Act of 1850, have sustained the power of Congress to legislate in respect to fugitive slaves, there is very little by way of independent discrimination of the basis of that power, and the decisions under the law of 1793 are mainly relied on, as precluding the inquiry.

The earliest decision under the Act of 1850, being also that which is most relied on in the later cases for sustaining that statute, is that of the Supreme Court of Massachusetts, in Sims' case (April, 1851), 7 Cushing, 285. Chief Justice Shaw, delivering the Opinion of the Court, began by describing the

.1 Graves v. The State (1849), 1 Carter's Ind. 368, merely affirms Prigg's case as authority that State legislation is void.

3 McLean, 634:-"The object of the arrest in the present case was avowed to be to take the fugitives before a judicial officer. But the same principle applies where the arrest is made for the purpose of taking the fugitive out of the State, and without judicial sanction." The judge referred to Prigg's case as the authority. He also cited Johnson v. Tompkins, Baldwin, 581, and Washington, J., in 4 Wash. 329, as sanctioning such a seizure. But it will be remembered that in the last of these the seizure is justified for the purpose of taking before a judge (ante, p. 440), and in the first case the rights of the claimant rested on the law of the State of Pennsylvania. Ante, p. 446.

* In Giltner v. Gorham (1848), 4 McLean, 402, where the action was for the value of slaves whom the plaintiff or his agents had attempted to seize in Michigan, with the design either to apply for a certificate or to remove without it, and whom the defendants enabled to escape to Canada, Judge McLean, in his Opinion or charge, seems again to have recognized the doctrine stated by him in the above case. The following sentences, from p. 425 of the report, are the most material, though in themselves nothing more than the ordinary judicial commonplace:-"This provision of the Constitution is a guaranty to the slave States that no act should be done by the free States to discharge from service in any other State any one who might escape therefrom, but that such fugitive should be delivered up on claim being made. The clause was deemed so important, that, as matter of history, we know the Constitution could not have been adopted without it. As a part of that instrument, it is as binding upon courts and juries as any other part of it." And see, to the same purpose, in a similar case, Ray v. Donnell and Hamilton, ib. 505.

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Constitution as a treaty or compact between the States, as absolutely distinct and sovereign nationalities at the time of its adoption, and proposed to "ascertain the true meaning and effect" of this provision, as determined by such a theory (ib. 295-297). He observed of the provision :-" We think it was intended to guaranty to the owner of a slave, living within the territory of a State in which slavery is permitted, the rights conferred upon such owner by the laws of such State, and that no State should make its own territory an asylum and a sanctuary for fugitive slaves, by any law or regulation, by which a slave who had escaped from a State where he owed labor or service, into such State or Territory, should avoid being reclaimed; it was designed, also, to provide a practicable and peaceable mode by which such fugitive, upon the claim of the person to whom such labor or service should be due, might be delivered up."

After stating cases to which the provision does not apply, Judge Shaw further said, ib. 299:-"To the extent, however, to which this privilege or benefit goes, that of securing the return of persons, owing service or labor in one State, who had fled or escaped into another, this provision of the constitution must be regarded as complete and sufficient to the proposed right. But the constitution itself did not profess or propose to direct, in detail, how the rights, privileges, benefits, and immunities intended to be declared and secured by it, should be practically carried into effect; this was left to be done by laws to be passed by the legislature, and applied by the judiciary, for the establishment of which full provision was at the same time made. The constitution contemplated a division and distribution of the powers incident to a sovereign state, between the general government of the United States and the government of each particular State; a distribution not depending on local limits, but made by selecting certain subjects of common interest and placing them under the entire and exelusive jurisdiction of the general government; such, for instance, as the foreign relations of the country, the subject of war and peace, treaties, the regulation of commerce with foreign nations, and among the several States, and with the

Indian tribes. These are a few of the most prominent subjects, by way of illustration.' And the theory of the general government is, that these subjects, in their full extent and entire details, being placed under the jurisdiction of the general government, are necessarily withdrawn from the jurisdiction of the State, and the jurisdiction of the general government, therefore, becomes exclusive. And this is necessary to prevent constant collision and interference; and it is obvious that it must be so, because two distinct governments cannot exercise the same power, at the same time, on the same subject matter. This is not left to mere implication. It is expressly declared, Article I., 8, that congress shall have power to make all laws which shall be necessary and proper, for carrying into execution all the powers vested by the constitution, in the government of the United States, or in any department or officer thereof. And by Art. 6, 'this constitution, and the laws of the United States which shall be made in pursuance thereof, and all treaties made, or which shall be made under the authority of the United States, shall be the supreme law 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.' All such laws, made by the general government, upon the rights, duties, and subjects, specially enumerated and confided to their jurisdiction, are necessarily exclusive and supreme, as well by express provision, as by necessary impli

1 In the report, an explanatory note to the Opinion is added, in which (7 Cushing, 317) the Judge again referred to these specific grants to the national Government to act in reference to certain international relations and interests of the States, arguing that the States stand in an international relation in respect to fugitive slaves, and that, therefore, it must have been intended that the whole subject should be within the legislative, judicial, and executive powers of the general Government. In this connection, the Judge said that the framers of the Constitution must have known "that in the States where slavery was allowed by law, certain rights attached to its citizens which were recognized by the laws of nations, and which could not be taken away without their consent. They, therefore, provided for the limited enjoyment of that right as it existed before, so as to prevent persons owing service under the laws of one State and escaping therefrom into another, from being discharged by the laws of the latter, and authorized the gen eral Government to prescribe means for their restoration." Could Judge Shaw have intended to say that the owners of slaves had, by the laws of nations, a right which could not be taken away without their consent, to retake the slaves who had escaped into other States? He had, in this Opinion, declared that in the absence of the provision, the owner's claim would have depended entirely on the will of the State. Compare Judge Nelson, ante, p. 447, note.