legislation in regard to the subject matter thereof, let us endeavor to arrive at its true intent and meaning, so far as it af fects the rights or condition of the class of persons to whom it is supposed especially to refer.

and over in the opinion of the court, and it is claimed that the State courts are bound by the decision. I cannot assent to the proposition.

"Again, it is said that the clause contains a positive and unqualified recognition of the right of the owner in the slave unaffected by any State law or regulation whatsoever, because there is no qualification or restriction of it to be found therein; and we have no right to insert any which is not expressed or clearly implied.'

"The rule of construction laid down in numerous instances, [123] which need not to be here specified, is, that the federal government can exercise no power, except what is expressly granted, or what is necessary to the exercise of some express power. We do not require or need restrictive or negative expressions in the Constitution, applicable to federal power. On the contrary, what is not granted is reserved without words of restriction. It was not necessary to insert any restriction upon the rights of the slave owner in this clause, because he had, and could have no rights but such as were expressly recognized. Nor without some express grant could Congress exercise any in his behalf. It would have been a work of supererogation to use restrictive words; nay more, it would have been a dangerous expedient, for then it would have been held, and with reason, that all rights and privileges were recognized that were not expressly enumerated among the reservations. As it is, the States, and people, (if it better suits,) have merely assented to the provision that the fugitive should not be discharged by their laws and regulations, but shall be delivered up. Not one word is uttered beyond. To hold that the States have no power or rights but such as are expressly reserved or fairly implied; that restrictions and reservations must be expressed, on the part of the States, or otherwise to be presumed as delegated or relinquished, is to reverse all rules of construction heretofore established. It is a dangerous doctrine. It is repugnant to the express provisions of the tenth amendment of the Constitution itself, which declares the contrary. Is there anything so sacred in the cause of a slave captor as to require a reversal of all rules of interpretation to sustain it? Why should this clause of the Constitution be construed according to rules, and upon principles [124] different from those to which every other part of that instrument is subjected? Why should State sovereignty be degraded in behalf of the slave owner, when every other claimant would approach its tribunals with respect and awe? The doctrine of the U. S. Court is, that because the clause does not restrict the claims of the owner, it therefore recognizes them to any extent allowed in a slave State; that because the States have agreed to recognize certain rights, or rather demands, of the slave owner, viz.: that they will not discharge, by law or regulation, a fugitive, and will deliver him up on claim, therefore they admit his whole claim of property; his absolute right to service in their own territory; indeed, all the rights of property and its incidents, to the same extent' that he may demand them in a slave State, by the laws thereof; that because they did not restrict the right of the owner to sell the fugitive, or hire him to service, or lash him into obedience, therefore, inasmuch as he had those rights to that extent in the State from which the slave escaped, he must have them in the State into which he may have fled! This is establishing the rule, that the States can exercise no powers which they did not reserve, instead of the acknowledged, the express, the constitutional rule, that the powers not delegated are reserved. This is no unworthy criticism upon the language of the court. It is the doctrine of the opinion from the beginning to the end. It is the basis, the very ground-work of the decision. It is absolutely neces sary to the conclusions of the court. To narrow the basis would be to destroy the superstructure. Abridge the premises, and the conclusions scatter. Upon

"Let it be taken for granted, that this clause was intended to refer exclusively to fugitive slaves; of which I think the history of its adoption into the Constitution leaves no doubt; the question at once arises, how far, and in what particulars, does it affect the persons alluded to in it? 1st. It contemplates the fact that certain persons were, or might be, held to service or labor in one or more States under the laws thereof. 2d. That it was by the laws of such State or States alone, under which such persons could be held to service or labor. 3d. That the laws or regulations of the respective States under which such persons might be held to service or labor, or discharged therefrom, might be different. 4th. That such persons might escape from one State in which they were held to labor under the laws thereof, into another State in which such persons were held to labor under different laws, or in which they were by the laws of the State discharged from service or labor. 5th. That the service or labor here spoken of is of a kind which is exacted of such persons by law, and not of a kind stipulated for by contract, and hence is in restraint of, and derogatory [17] to human liberty. 6th. That such persons escaping from one State into another, should not be discharged by the laws of the State to which they may have fled, but that the condition of the fugitive should remain the same in the State from which he had fled, in case the person to whom he owed the service should choose to claim him and convey him thither. 7th. That in the event of a claim by the person to whom the fugitive owed the service under the laws of the State from which he fled, being made, he should be delivered up, on establishing the fact that the labor or service of the fugitive was due to such claimant.

"From this analysis of the clause of the federal Constitation above quoted, it will be seen that the status of the fugi

this ground it was absolutely necessary that the court should plant its decision. No other [125] would serve to sustain it. They did so. To have done less would have been to have done the reverse.

It may then be asked in all candor if the Supreme Court of the United States, or any other officer or person, can expect the courts of the States to adopt this decision as the law of the land? Do they require obedience to this rule of interpretation? If so, in obeying this we violate all other rules of construction by them established. Fealty to the doctrines of this case is treason to the law of all preceding cases."

tive is essentially different in this State, from his status or condition in the State from whence he fled. In the latter, he remained subject to all the disabilities of his class, though he may have escaped from the domicil or premises of his master. Here, he is entitled to the full and complete protection of our laws; as much so as any other human being, so long as he is unclaimed. He may sue and be sued; he may acquire and hold property; he is, to all intents and purposes, a free man, until a lawful claim is made for him; and this claim must be made by the person to whom his service or labor is due, under the laws of the State from which he escaped. No one else can interfere with him. If no claim is set up to his service or labor by the person to whom his service or labor is due, there is no power or authority, or person on earth, that can derive any advantage from his former condition, or assert it, to his prejudice. So long as the owner does not choose to assert his claim, the cottage of the fugitive in Wisconsin is as much [18] his castle-his property, liberty, and person are as much the subject of legal protection, as those of any other person. Our legal tribunals are as open to his complaint or appeal, as to that of any other man. He may never be claimed; and if not, he would remain forever free, and transmit freedom to his posterity born on our soil.

"It is apparent, therefore, that the fugitive slave leaves his condition of slavery behind him, and takes with him into this State only the dread contingency of the assertion of the claim of the person from whose service he has escaped, upon the establishment of which he may be reduced to his former condition in the State from which he fled.

"The act of Congress of 1850 fully recognizes this view of the Constitution, and contemplates the recapture of the fugitive, as dependent entirely upon the claim of the master. The sixth section provides that the person or persons to whom such service or labor may be due, or his, her, or their agent or attorney, duly authorized by power of attorney, in writing, acknowledged and certified under the seal of some legal officer or court of the State or Territory in which the same may be executed, may pursue and claim such fugitive

person,' &c. No one but the owner, or his agent or attorney, appointed by writing, may claim him. No one may volunteer to render his neighbor a friendly service, by capturing in his behalf and returning to him his fugitive. It must be the master's own act, and its responsibilities be all his own."

Afterwards, on p. 37, Judge Smith argues that the provision contemplates a claim to be judicially determined, in contrast to such a claim as is made by a mere seizure. This part of the Opinion will be cited in another place.'

§ 811. In Er parte Bushnell, Ex parte Langston, 9 Ohio, 77, the parties had both been indicted, in the United States District Court, for having rescued a negro from the custody of the agent of the alleged owner, who, in the words of the indictments, did "pursue and reclaim the said negro slave, called John, he then and there being a fugitive person as aforesaid, and still held to service and labor as aforesaid, by then and there, on the day and year last aforesaid, at the district aforesaid, and within the jurisdiction of this court, seizing and arresting him as a fugitive person from service and labor from the said State of Kentucky;" and it is further stated in the indictment that the said slave was then and there "lawfully, pursuant to the authority of the statute of the United States, given and declared, in such case made and provided, arrested, in the custody and under the control" of the said agent, &c. No process or warrant in the hands of such agent is mentioned."

Judges Swan and Peck, maintaining the power of Congress to legislate, seem to consider only whether Congress had power to pass a law to protect those who might hold in their custody escaped slaves, and, considering the right to seize and remove as having been given by the Constitution, they regard the seventh section of the Act, under which the relators had been indicted,

See post in Ch. XXIX. among cases on the question whether the action of the United States Commissioners involves an exercise of the judicial power.

2 Mr. Wolcott, Attorney-General for the State, argues the case as if the indictments in the United States Court were under a statute for protecting a right to seize and remove the fugitive given by the Constitution, not under a statute for protecting a right to arrest for the purpose of prosecuting the claim according to Act of Congress. He assumes that such a right, under the Constitution, must exist as a foundation for the action of Congress, 9 Oh. 110. His argument against the right, as declared in Prigg's case, is found ib., 146–150.

as intended to protect this right. Hence, Swan, Ch. J., did not consider it necessary to examine into the validity of other provisions in the Act of 1850. 9 Ohio, 184, 185. And Judge Peck, ib. 213, referring to the position of the Chief Justice, says:— "Nor indeed can the relators be liberated under such a return upon habeas corpus if, under any circumstances, such a rescue would be unlawful and punishable under the Act of 1850. The uniform current of all the authorities has heretofore been, and I am not aware of a single exception, that under the constitutional provision the master may, if he can do so without a breach of the peace, take possession of his fugitive slave; and many other cases may be supposed in which the custody of the owner, for the time, would be lawful, and which the relators would have no right to disturb. If these positions of the Chief Justice are true, and it seems to me that they are so, the objections to the law of 1850, because it does not accord a jury trial to the fugitive before his extradition, and permits a seizure and removal under a warrant of a Commissioner of the Circuit Court, cannot avail the relators, even though those provisions should be regarded as unconstitutional."

But, since the statute connects a seizure without process with a subsequent taking before a court, a judge, or a commissioner, it is evident that the doctrine of a right of seizure and removal under the Constitution was not involved in this case.'

812. The direct judgment of the Supreme Court in Prigg's case, confirmed by repeated dicta in later cases, will probably continue to be received as controlling authority on this point. The following considerations are offered by way of comparing the doctrine of that case with the conclusion indicated by a just application of principles herein before stated.'

The words "no person held to service or labor in one State,

The question might be made, whether any one would be indictable under this statute for obstructing another who should endeavor to remove out of the State the person claimed as owing service, without going before a judge or commissioner. Perhaps an objection might have been sustained against the first count of the indictments in the cases of Bushnell and Langston, that it did not state that the negro was seized and held for that intent. There was another count in the indictment against Langston, charging rescue when the slave was held under a commissioner's warrant.

In Chapters XX, and XXI.