proof to the satisfaction of such judge, or magistrate, either by oral evidence or affidavit, &c., that the person so seized or arrested, doth, under the laws of the State or Territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be a sufficient warrant for removing the said fugitive from labor to the State or Territory from which he or she fled.

This Act covers the whole ground of the Constitution as to fugitive slaves, and points out all the modes of proceeding in respect thereto which Congress had judged expedient or advisable, and if constitutional, it must supersede all State legislation on the same subject. For if Congress have a constitutional power to regulate a given subject, and they do actually regulate it in a given manner and form, the subject is as clearly established by its omissions, as by its actual provisions, and it is not competent to a State Legislature to pass additional or auxiliary laws and regulations, since that would be to make the Act of Congress more extensive and different in its effect, and would virtually alter the law.

It has been objected that this Act is unconstitutional, because it does not fall within the enumerated powers of legislation given to Congress. The argument, stripped of its artificial structure, comes to this, that although rights are exclusively secured by, or duties exclusively imposed upon, the national government, yet, unless the power to enforce those rights or to execute those duties can be found among the express powers of legislation enumerated in the Constitution, Congress cannot give

them effect, even though they become a nullity, through want of a proper remedy to enforce them, or to provide against their violation. This construction has, however, never been adopted in theory or practice. But, on various occasions, Congress has exercised powers which were necessary and proper as means to carry into effect rights expressly given, and duties expressly enjoined. And, indeed, in the part of this clause relating to fugitives from justice, this power has been exerted, and Congress has declared to whom application shall be made, that matter being left undecided by the Constitution-an exercise of power which has always been acquiesced in and upheld. So, also, the power of Congress to pass the foregoing Act in relation to fugitive slaves has been judicially affirmed in repeated instances, and uniformly acquiesced in throughout the whole Union, until a very recent period. And if contemporaneous exposition and long acquiescence constitute any proof that such a power exists, it may safely be said to exist in the present case. "This Act, therefore, in its leading provisions, is clearly constitutional," "with the exception of that part which confers authority upon State magistrates." In that respect it is not constitutional.

The remaining question is, whether the power of legislation on this subject is exclusive in Congress, or concurrent in the States, until it is exercised by Congress. "By the general law of nations, no nation is bound to recognize the state of slavery as to foreign slaves found within its territorial dominions. If it does, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the

range of the territorial laws." "If the Constitution had not contained this clause, every non-slaveholding State in the Union would have been at liberty to declare free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters."

Before the adoption of the Constitution, therefore, no State had any power whatsoever over the subject, out of its territorial limits, except by comity or favor. The Constitution, in this clause, creates a new right, which the States never had, and, therefore, in the absence of all positive delegation of power to the States, it belongs to Congress and the national government which created it. How could a power intended to be the same throughout the Union, be confided to State sovereignty, which cannot rightfully act beyond its own territorial limits? The nature and object of this provision require that it should be uniformly regulated through the States, which can only be attained by giving to Congress exclusive jurisdiction; since, if each State were at liberty to prescribe such regulations as suited its policy, the legislation of one State might be utterly repugnant to and incompatible with that of another. The right, therefore, would never be practically the same in all the States, according to the guaranty in the Constitution. If, however, the right of legislation be construed as exclusive, all difficulties vanish.

Such is the reasoning upon which the judgment in the case of Prigg v. The Commonwealth of Pennsylvania is founded. In view of the importance of its doctrines, and the public interest it has excited, I have deemed it proper to set it forth thus at length. As its bearing,

as well as my father's views in respect to it, seemed to me to have been somewhat misapprehended, it should not be dismissed, in this place, without some explanatory remarks.

It is often assailed as if it had been decided on moral grounds. But, in fact, the question was purely legal, and not ethical. The function of the Supreme Court was to pronounce what the law was, and not what it ought to be; and their conclusions, whether right or wrong, are simply on the fact of the law. Arguments, which would have been unanswerable, had they been advanced against the adoption of the clause relating to fugitive slaves into the Constitution, cannot govern its interpretation after it has been adopted, and therefore cannot properly be urged against this judgment. The responsibility of laws rests with the legislature and the people whom it represents; the responsibility of their constitution with the people; neither with the judiciary.

Entertaining views so hostile to slavery in all its forms, my father would gladly have escaped from the decision of this case, and especially from being made the organ of the Court, in delivering its judgment. But urged to this position by the strenuous request of his brother Judges, he did not feel authorized to decline what he considered to be his duty, however unpleasant it might be. In so doing, he merely stated the law as he honestly believed it to be, under the Constitution and Act of Congress. But, supervised as the judgment was, and intended to express the views of the Court, he was not at liberty to introduce into it any expressions of merely personal feeling; and no one familiar with his

judgments, can fail to perceive in this a dryness, reserve, and unwillingness, peculiarly unnatural to him.

Regarded in a legal point of view, this judgment conforms to those principles of interpretation in favor of the Federal Government, which appear in his familiar letters, and are developed in all his other constitutional opinions. It affirms the doctrine, that the Constitution creates, not a mere confederation of States, but a government of the people, endowed with all powers appropriate or incidental to carry out its provisions, although not expressly surrendered by the States. Without contradicting previous judgments, it would have been difficult for him to come to a different conclusion. But, in establishing, contrary to the opinion of four of the Judges, that the extradition of fugitive slaves is exclusively within the jurisdiction of the Federal Government, and that the State Legislatures are prohibited from interfering even to assist in giving effect to the clause in the Constitution on this subject, he considered that a great point had been gained for liberty; so great a point, indeed, that on his return from Washington, he repeatedly and earnestly spoke of it to his family and his intimate friends, as being "a triumph of freedom."

It was "a triumph of freedom," because it localized slavery, and made it a municipal institution of the States, not recognized by international law, and except, so far as the exact terms of the clause relating to fugitive slaves extended, not recognized by the Constitution. In taking these positions, it incidentally and for the first time in the national courts affirmed the doctrine before promulgated in the Supreme Court of Massachusetts, in Commonwealth v. Aves, (18 Pick. R. 193,) that the