8781. There seems to be a very general impression that the doctrine implied in asserting the power of Congress is, that a power is given by the Constitution to the national Government, as distinguished from any department or officer thereof, and that Congress, legislating to carry into effect that power, is either enforcing the duties of the States or maintaining rights correlative to those duties.

But in the greater number of cases, later than Prigg's case, in which this view may have been sustained, the courts appear to have understood Story and the majority of his associates as sustaining this construction, and they appear to have relied mainly on the authority of the Opinion of the court in that case as they understood it.

If, then, Story's real doctrine in that case has been correctly distinguished in the preceding pages and has been misapprehended in these later cases, the supposed bulk of opinion in favor of this construction is for the greater part imaginary.

On the other hand, if that adaptation of the third construction under which Congress legislates to carry into effect a power of the judiciary department, in cases between the claimant and the national Government, was that which was adopted by Judge Story and a majority of the court, it has not been supported by the later cases, and stands not only alone, but in antagonism to the received theory; and it is very doubtful whether a majority of Judge Story's associates, or even any one other member of the court, agreed with him in this eonstruction.

Judge Hornblower, in the New Jersey case, Judge Smith, in the Wisconsin cases, and Judges Brinkerhoff and Sutliff, in the Ohio case, appear to have supported the first construction. This is the view generally taken by those who deny entirely the power of Congress to legislate on the subject. Chancellor Walworth has been often quoted as sustaining the same doc

U. S. Dist. C.; ib. 301; U. S. v. Hanway, U. S. Cir. C., before Grier, J., 2 Wallace, Jr., 139. The proceedings in Jerry's case, at Syracuse, N. Y.; Henry . Lowell, 16 Barbour, 269; Fisher's case, before Kane, J., U. S. Dist. C., IV. Month. L. R. 394; Ex parte Jenkins, 2 Wallace, Jr., 521; Van Metre v. Mitchell, and Oliver v. Weakley, ib. 311, 324; Van Orden's case, VI. Month, L. R. 295; Anthony Burns' case, before Commissioner Loring, VII, Month, L. R. 181; Ex parte Robinson, 6 McLean, 355,

trine, though his opinion really agrees best with the fourth construction.'

8782. The action of the Commissioners of the United States Circuit Courts, under the law of 1850, has always been justified on the admission that they could not be invested with the judicial power of the United States. The opinions of gentlemen holding this office cannot therefore be cited as judicial authority, though their intrinsic merits may entitle them to high consideration among other juristical arguments.'

§ 783. The opinions of the gentlemen holding the office of Attorney-General of the United States may be thought to have an authority superior to that of private jurists. The President of the United States, before signing the bill of 1850, had requested of Mr. Crittenden, Atty.-Gen., his opinion on the constitutionality of the sixth section of the Act, and particularly whether the last clause was in conflict with the constitutional guarantee of the writ of habeas corpus. In this opinion, dated Sept. 18, 1850, Mr. Crittenden rests the power of Congress on the decision in Prigg's case.'

784. The writers more particularly known as commentators on the Constitution have not given any remarkable attention to these provisions.*

A view very nearly coinciding with Chancellor Walworth's may be found in A short reading on a short clause in the Constitution of the United States, VII. Monthly Law Rep. 316 (October, 1854). The anonymous contributor supports the fourth construction of the provision, making it applicable by the judiciary and maintaining the doctrine of seizure. He denies any power in Congress to legis

late.

In Sims' case, Mr. Commissioner Curtis based the power of Congress on that adaptation of the third construction which was Judge Story's in Prigg's case, according to which the claim is against the national Government, and thereby a case arises within the judicial power. IV. Month. L. R. 6. The report will be given hereinafter among the authorities on the question, whether the judicial power of the United States has, by the Act of 1850, been conferred on the Commissioners. Mr. Loring's decision, in Burns' case, will also be noted in that connection; it has no bearing on this question of construction.

5 Opinion of Atty.-Gen. 254. His statement of the doctrine of that case is as follows:-"It is well known, and admitted historically and judicially, that this clause of the Constitution was made for the purpose of securing to the citizens of the slaveholding States the complete ownership in their slaves as property in any and every State or Territory of the Union into which they might escape (16 Peters, 539). It devolved on the general government as a solemn duty to make that security effectual. * Thus the whole power, and with it the whole duty of carrying into effect this important provision of the Constitution was with Congress."

*

'N. Y. Legal Obs. IX. 10:-" This section [the second of the fourth Art.] has received only sparing attention from writers on the Constitution. It seems to

785. In the Senate of the United States, Mr. Clay' bore a principal part in the enactment of the so-called Compromise Measures of 1850, though the fugitive-slave law was not framed by him, nor did he vote on it. His observations on the nature and operation of the provision are hardly reconcila

have been carefully avoided by all publicists whose works we have consulted. Kent, Story, and others, it would seem, when commenting on the Constitution, might have given the questio vexata of the United States government an examination commensurate with its importance. These great luminaries of the law owed it to the American people. This they have not done."

1 Mr. Clay, on the 29th of January, 1850, submitted in the Senate his “Compromise Resolutions," of which the 7th was, "That more effectual provision ought to be made by law, according to the requirements of the Constitution, for the restitution and delivery of persons bound to service or labor in any State, who may escape into any other State or Territory of this Union;" and in a speech on these resolutions, Feb. 5 and 6, 1850, said:-"On that subject, I go with him who goes farthest in the interpretation of that clause in the Constitution. In my humble opinion, it is a requirement by the Constitution of the United States, which is not limited in its operation to the Congress of the United States, but extends to every State in the Union; and I go one step farther: it extends to every man in the Union, and devolves upon them all an obligation to assist in the recovery of a fugitive from labor who takes refuge in or escapes into one of the free States. And, Sir, I think I can maintain all this by a fair interpretation of the Constitution: it provides, &c. It will be observed that this clause in the Constitution is not among the enumerated powers granted to Congress, for, if it had been the case, it might have been urged that Congress alone could legislate to carry it into effect; but it is one of the general powers, or one of the general rights secured by this constitutional instrument, and it addresses itself to all who are bound by the Constitution of the United States. Now, Sir, the officers of the general Government are bound to take an oath to support the Constitution of the United States. All State officers are required by the Constitution to take an oath to support the Constitution of the United States; and all men who love their country, and are obedient to its laws, are bound to assist in the execution of those laws, whether they are fundamental or derivative. I do not say that a private individual is bound to make the tour of his State in order to assist an owner of a slave to recover his property; but I do say, if he is present when the owner of a slave is about to assert his rights and endeavor to obtain possession of his property, every man present, whether he be an officer of the general or the State Government, or a private individual, is bound to assist, if men are bound at all to assist in the execution of the laws of their country."

Then, after a reference to the provision for fugitives from justice. Mr. Clay said:"It imposes an obligation upon all the States, free or slaveholding; it imposes an obligation upon all officers of the government, State or Federal; and I will adi, upon all the people of the United States, under particular circumstances, to assist in the surrender and recovery of a fugitive slave from his master."

The Act of 1850 was framed by Mr. Mason, of Virginia. Mr. Clay, it is said, thought the law objectionable in shape; but in the Senate, in a speech on the violations of the law, Feb. 21 and 24, 1851, 2 Speeches of H. Clay, 608, sustaining it, said, ib., p. 620:-" But, what is this Constitution? It makes a government. It is an aggregate of powers vested in the government-some of them enumerated, others, from the imperfection of human nature and human language, are not specified, but are incidents to powers granted." Then, quoting the concluding clause of the eighth section of the 1st Art. :-"I hold that when it is said a thing shall be done, and when a government is created to put this Constitution into operation, and no other functionary or no other government by the United States is referred to, the duty of enforcing the particular power, the duty of carrying into effect the

ble with any view that has been judicially propounded; but they are worthy of notice, not only on account of his eminent position, but because, in all probability, they correspond with ideas popularly adopted in the discussion of this subject.

§ 786. If, among countless opinions of private persons, which have been published since 1850, on the question of the power of Congress, one may be selected for acknowledged juristical authority, it is that of Mr. Webster, who, on more than one occasion, expressed his acquiescence in the existing judicial determination of this question. But his individual opinion appears clearly to have been that of Judges Hornblower and Smith, and adverse to the attribution of legislative power to Congress.'

787. In the Boston Daily Advertiser of the 19th November, 1850, appeared the opinion of Benjamin R. Curtis, Esq., afterwards Judge of the Supreme Court of the United States,

specific provision, appertains to the general Government, to the government created by the Constitution of the United States. The Constitution declares that a slave shall be delivered up. It says not how or by whom, whether by the State or by the general Government, or by any officer; but it grants authority to Congress to pass all laws necessary and proper to carry into effect the powers granted by the Constitution." In continuing his argument, Mr. Clay said, ib, 621:— "There is a large class of powers in the original Constitution and in the twelve subsequent amendments which declare that certain things shall be, but specify no particular authority by which they are to be carried into effect."

In his speech in the Senate, March 7, 1850, Works V. 355, Mr. Webster said: "I have always thought that the Constitution addressed itself to the legislatures of the States or to the States themselves. It says that those persons escaping from other States shall be delivered up,' and I confess I have always been of the opinion that it was an injunction upon the States themselves. When it is said that a person escaping into another State, and coming, therefore, within the jurisdiction of that State, shall be delivered up, it seems to me the import of the clause is, that the State itself, in obedience to the Constitution, shall cause him to be delivered up. That is my judgment. I have always entertained that opinion, and I entertain it now. But when the subject, some years ago, was before the Supreme Court of the United States, the majority of the judges held that the power to cause fugitives from service to be delivered up, was a power to be exercised under the authority of this government. I do not know, on the whole, that it may not have been a fortunate decision. My habit is to respect the result of judicial deliberations and the solemnity of judicial decisions. As it now stands, the business of seeing that these fugitives are delivered up, resides in the power of Congress and our national judicature," &c.

It appears that the view which Mr. Webster's individual judgment approved was also that held by some who held the extreme opposite doctrine on States' rights. Mr. Clay, in the speech last noted, remarked that "the learned Senator [Mr. Barnwell Rhett, of South Carolina] contended that there was no power in the government of the United States to pass the fugitive-slave law." And noticed, among the most remarkable features of the times, that there are certain coincidences between extremes, in this body and in the country:" speaking of Mr. Rhett, and Mr. Chase, of Ohio, as coinciding on this question.

86

as counsel for the United States Marshal, dated Nov. 9, on the constitutionality of the Act of Congress of 1850. Judge Curtis did not, in this, consider the question of the power of Congress to legislate on the subject. An extract from the opinion will hereafter be given,' from which it may be inferred that, in his view, the claim is made on the national Government, which may respond thereto, at its pleasure, and in any manner it may judge proper; that there is no "case" within the judicial power, unless Congress should choose to place it within the action of that power. In this, Judge Curtis' view agrees best with the third construction, though he apparently differs from Judge Story, in Prigg's case, by not recognizing, as a basis of the legislative power of Congress, the "case" arising under the Constitution and so falling within the judicial power.

1 See post, Ch. XXIX., where the authorities on the question of the Commissioners being invested with judicial power, are considered.