right secured by the Constitution, and requires no law to fortify or strengthen it." He agrees with the Chief Justice in maintaining a concurrent power of legislation in the States, though, on the whole, his language is more in accordance with the third construction than with any other.

$759. Mr. Justice McLean disagreed with all the other members of the court by holding that the owner could not seize and remove the fugitive slave by virtue of the provision alone (pp. 666-673). It does not, however, follow from this alone that he could not have regarded the provision as having the effect of private law, according to the fourth construction. He seems to admit that independently of any statute the owner may have a perfectly legal right which may be judicially recognized (p. 670):-"I cannot perceive how any one can doubt that the remedy given in the Constitution, if, indeed, it give any remedy without legislation, was designed to be a peaceful one; a remedy sanctioned by judicial authority; a remedy guarded by the forms of law.' But the inquiry is reiterated— Is not the master entitled to his property? I answer, that he is. His right is guaranteed by the Constitution, and the most summary means for its enforcement is found in the acts of Congress."

Judge McLean's several Opinion contains but little explanatory of the basis of the legislative power of Congress. He treats the question of power in Congress as settled, and first refers to it by asking whether it is exclusive. On page 660:"Does the provision in regard to the reclamation of fugitive slaves vest the power exclusively in the federal Government?" His language in arguing that the power is exclusive of State legislation would indicate his adoption of the second construction. It will be seen that Judge McLean constantly speaks of a duty of the States to deliver up the fugitive on claim, even while he asserts that they have no power to act in the matter. He continues:-"This must be determined from the language of the Constitution and the nature of the power. The language of the provision is general. It covers the whole ground, not in detail, but in principle. The States are inhibited from pass

1

Compare Chancellor Walworth's doctrine, ante, p. 451.

ing any law or regulation which shall discharge a fugitive slave from the service of his master;' and a positive duty is enjoined on them to deliver him up, 'on claim of the party to whom his service may be due.'

"The nature of the power shows that it must be exclusive.' It was designed to protect the rights of the master, and against whom? Not against the State, nor the people of the State in which he resides; but against the people and the legislative action of other States where the fugitive from labor might be found. Under the confederation, the master had no legal means of enforcing his rights in a State opposed to slavery. A disregard of rights thus asserted was deeply felt in the South. It produced great excitement, and would have led to results destructive of the Union. To avoid this, the constitutional guarantee was essential.

"The necessity for this provision was found in the views and feelings of the people of the States opposed to slavery; and who, under such an influence, could not be expected favorably to regard the rights of the master. Now, by whom is this paramount law to be executed?

"It is contended that the power to execute it rests with the States. The law was designed to protect the rights of the slaveholder against the States opposed to those rights; and yet, by this argument, the effective power is in the hands of those on whom it is to operate.

"This would produce a strange anomaly in the history of legislation. It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies that ever assembled, they were, perhaps, most exempt.

"The clause of the Constitution under consideration declares that no fugitive from labor shall be discharged from such labor, by any law or regulation of the State into which he may have fled. Is the State to judge of this? Is it left for the State to determine what effect shall be given to this and other parts of the provision?

1

Compare 9 Ohio, 269, Sutliff, J.

2

Compare ante, p. 462, note.

"This power is not susceptible of division. It is a part of the fundamental law, and pervades the Union. The rule of action which it prescribes was intended to be the same in all the States. This is essential to the attainment of the objects of the [662] law. If the effect of it depended, in any degree, upon the construction of a State by legislation or otherwise, its spirit, if not its letter, would be disregarded. This would not proceed from any settled determination in any State to violate the fundamental rule, but from habits and modes of reasoning on the subject. Such is the diversity of human judgment, that opposite conclusions, equally honest, are often drawn from the same premises. It is, therefore, essential to the uniform efficacy of this constitutional provision that it should be considered, exclusively, a federal power. It is in its nature as much so as the power to regulate commerce, or that of foreign intercourse."

In the further examination of this question, Judge McLean, even while denying that the States would have any legislative power over the subject even had Congress not legislated, maintains the idea that the duty created by the clause is the duty of the States. In that part of his Opinion which relates to the validity of the Act of Congress in imposing duties on State magistrates, on page 665, he says:

"The Constitution requires that such person shall be delivered up, on claim of the party to whom the service is due.' Here is a positive duty imposed; and Congress have said in what mode this duty shall be performed. Had they not the power to do so? If the Constitution was designed, in this respect, to require, not a negative but a positive duty on the State, and the people of the State, where the fugitive from labor may be found-of which, it would seem, there can be no doubt it must be equally clear that Congress may prescribe in what manner the claim and surrender shall be made. I am therefore brought to the conclusion that, although, as a general principle, Congress cannot impose duties on State officers, yet in the cases of fugitives from labor and from justice, they have the power to do so.

"In the case of Martin's Lessee v. Hunter, 1 Wheat. Rep.

304, this Court say, 'The language of the Constitution is imperative on the States as to the performance of many duties. It is imperative on the State legislatures to make laws prescribing the time, place, and manner of holding elections for senators and representatives, and for electors of President and Vice-President. And in these, as [666] well as in other cases, Congress have a right to revise, amend, or supersede the laws which may be passed by the State legislatures.'

"Now, I do not insist on the exercise of the federal power to the extent as here laid down. I go no farther than to say, that where the Constitution imposes a positive duty on a State, or its officers, to surrender fugitives, that Congress may prescribe the mode of proof, and the duty of the State

officers.

"This power may be resisted by a State, and there is no means of coercing it. In this view the power may be considered an important [sic] one. So the Supreme Court of a State may refuse to certify its record on a writ of error to the Supreme Court of the Union,' under the twenty-fifth section of the judiciary act. But resistance to a constitutional authority by any of the State functionaries, should not be anticipated; and if made, the federal government may rely upon its own agency in giving effect to the laws."

On the whole, Judge McLean seems to support the second construction as the basis of the legislation of Congress. He denies the concurrent power of the States, on the ground that they are the subjects of the rule of action which is to be enforced.

$760. The Opinion of Mr. Justice Daniel is to be especially noticed, in considering how far the opinions expressed in this case are extrajudicial. On page 650 of the report Judge Daniel says:—

66

Concurring entirely as I do with the majority of the Court in the conclusions they have reached, relative to the effect and validity of the statute of Pennsylvania, now under review, it is with unfeigned regret that I am constrained to dissent from

1 This occurred in the Wisconsin case, Ableman v. Booth; see post.

some of the principles and reasonings which that majority, in passing to our common conclusions, have believed themselves called on to affirm.

[651] "In judicial proceedings generally, that has been deemed a safe and prudent rule of action, which involves no rights, nor questions not necessary to be considered; but leaves these for adjudication where, and when, only they shall be presented directly and unavoidably, and when surrounded with every circumstance which can best illustrate their character. If, in ordinary questions of private interest, this rule is recommended by considerations of prudence, and accuracy, and justice, it is surely much more to be observed, when the subject to which it is applicable is the great fundamental law of the confederacy, every clause and article of which affects the polity and the acts of States.

"Guided by the rule just mentioned, it seems to me that the regular action of the Court in this case is limited to an examination of the Pennsylvania statute, to a comparison of its provisions with the third clause of the fourth Article of the Constitution, and with the act of Congress, of 1793, with which the law of Pennsylvania is alleged to be in conflict; and that to accomplish these purposes a general definition or contrast of the powers of the State and federal governments was neither requisite nor proper. The majority of my brethren, in the conscientious discharge of their duty, have thought themselves bound to pursue a different course; and it is in their definition and distribution of State and federal powers, and in the modes and times they have assigned for the exercising those powers, that I find myself compelled to differ with them.

* * *The paramount authority of this clause in the Constitution to guaranty to the owner the right of property in his slave, and the absolute nullity of any State power, directly or indirectly, openly or covertly, aimed to impair that right, or to obstruct its enjoyment, I admit, nay, insist upon to the fullest extent. I contend, moreover, that the act of 1793, made in aid of this clause of the Constitution, and for its enforcement, so far as it conforms to the Constitution is the supreme law to the States, [652] and cannot be contravened by