Cbawfoud,
Justice, dissenting. Inasmuch as I cannot concur with my brethren upon all of the points embraced in- the opinion which has. just been delivered by the Chief Justice, I feel called upon to designate in writing the points upon which I dissent.
That either of the justices of this court has authority to grant the writ of Habeas Corpus when a prop-per case for the issuing of the writ is laid before him by petition, I do not entertain -any doubt; but whether the mandate of either, of us in the form used in this case, and authenticated or tested only b.y the sign manual of the justice granting or allowing it,' without the signature of the clerk, or the seal of a court, is such a writ as- is contemplated by the statute, (chap. 124, secs. 6, 7, 41 and 42,) is not made a question in the present case, and may be of no importance here.
I agree with my brethren that the proceeding upon the return of the writ, and the decision arrived at by the justice before whom the hearing has taken place at chambers, may be reviewed in this court by means of a writ of certiorari.
*71I also concur in the opinion that when a writ Habeas Corpus ami causa has been granted or allowed, and issued, directed to any person within the territorial limits of this State, enjoying the protection of our Constitution ‘and laws, and amenable to them, the exigency of that writ must be obeyed, and a return to the writ enforced, whether the person to whom the writ has been directed be the marshal of the United States or not; and the reasons for this conclusion, as presented by the Chief Justice, are entirely satisfactory to me.
I also believe, with the majority of the .court, that when a writ of Habeas Corpus cum causa has been directed to the Marshal of the United States, and he has by his return thereto set forth a writ or process, by virtue of and in obedience to which he claims to detain the person by whom or in whose behalf the writ of Habeas Corpus has been applied for, it is within the province of the State court or magistrate before whom the hearing is had, to look into the process by which the marshal justifies the detention, so far as may be necessary to enable the court or officer to determine whether the process is such as might have been issued by the tribunal from which it emanated, and Avhethef that tribunal had jurisdiction of the subject matter or offence set up in the warrant or process, but beyond this I cannot go. That we are authorized to examine into the nature of the process for this purpose, must, I think, be obvious, because without such an inquiry we could not determine whether really there be a. warrant, or writ, or not; and the bare return by the marshal that he detains by virtue of a process, would not be a compliance with section ten of our Habeus Corpus act, without *72setting forth a copy of the process. And that our so viewed the power of the court, or officer before whom a Habeas Corpus case might be heard, is apparent from, the first subdivision of section eighteen of the chapter, which directs that the party shall be remanded, if it shall appear that he is detained. “ by virtue of process issued by any court or judge of' the'United States, in a case where such court or judge-has exclusive jurisdiction.” How otherwise than by looking into the process and examining its nature, could it be ascertained and determined whether it ■were, in fact, process issued by a federal authority, or whether the case or matter in which it issued were exclusively within the jurisdiction of the federal court or judge ? But when the inquiry into the process is carried thus far, and it is discovered that it is a valid-process, of the issuing of which the federal court or .officer had jurisdiction, and that the subject matter, or offence named therein, is within the control or jurisdiction of the court or officer issuing it, then, I believe, a just and proper regard for the' laws of the general government, and for the due administration of them in their own courts, demands that the State court or officer should decline to proceed any farther,, and refer the applicant to the federal court for the relief which he seeks.
In pursuing this course, I do not perceive that the State tribunals yield anything which may be properly included in their rights or independence ; but, on the contrary, they thereby evince a desire to preserve a. clear distinction between subjects over which the federal courts have jurisdiction, and a/re in the exercise thereof.i and subjects beyond the jurisdiction of the federal courts, and over which the State tribunals have . *73the exclusive control. Nor can I see how the person whose liberty is invaded by color of process, is deprived of the writ of Habeas Corpus, if, indeed, his case be one in which that writ ought to be allowed, because the courts and judges of the United States are as fully empowered to allow such writ, where the detention or imprisonment is found in a case within their jurisdiction, as are the courts of the State. (Vide Sergt. Const. Law, chap. 28, and cases there cited.)
But the question of greatest moment, and a decision or opinion upon which is most desired in this case, relates to the constitutional power of Congress to enact the law of 1850, chapter 60, commonly known as the Fugitive Slave Law.
It has been zealously and ably urged at the bar, by the counsel for the petitioner, that the Constitution of the United States vests no power, either expressly or by implication, in Congress, to legislate upon the subject of the reclamation of fugitives from labor or service, but that the power of legislation upon this subject belongs "exclusively to the States, and that the clause in the Constitution of the United States concerning fugitives from labor, amounts only to a compact obligatory upon the several States, but grants no power to Congress. This is the view of the subject taken by my brother Smith, before whom the case was heard at chambers, who held the law in question to be unconstitutional and void, for several reasons.
The counsel for the respondent has, with marked ability, met and contended against .the objections to the validity of this law ; and from all the information which I have derived from the lengthy arguments in the present case, from the nature and history of the clause in the Constitution of the United States, in pur*74suance whereof the law was enacted by Congress, as well as from an examination into the several cases reported in the federal and State courts in which this question has been adjudicated, I am satisfied that Congress has the constitutional power to legislate upon the subject, of fugitives from service or labor, in order to give effect to the third clause of section two of article four of the Constitution of the1 United States. If this were a new question, and I did not feel the control of former adjudications by tribunals ■composed of men of the most eminent endowments, I would incline to the belief that the power to legislate upon this subject, while it belonged to Congress in virtue of the Constitution, might be properly exercised by the several States.' In other words, that the power is concurrent, and so long as the State legislation is not repugnant to or inconsistent with the provisions made by Congress, it is permissible. This is, I think, a necessary conclusion .from' the. language of the Constitution itself, where it declares that the fugitive “ shall be delivered up on the claim' of the party to whom such service or. labor may be due.” The injunction thus imposed upon the States is no less obligatory upon them than is. any other provision contained in their- respective Constitutions, because the Constitution of the United States, in all its' provisions, is not only a component part of the law of each of the States, but is really the supreme .law. I acknowledge that when Congress has acted upon the subject, their action, so far. as it'goes,'must necessarily be exclusive ; but I am unable to appreciate the reasoning by which the several States should be precluded from legislating in aid' of the provisions made' by Congress, so long as their legislation does not in any *75respect impede or conflict with the enactment of Congress. '
In Houston vs. Moose, (5 Wheat. 48,) Mr. Justice Story, in speaking of the grant of powers to Congress by the Constitution, says : “A reasonable interpretation of that instrument necessarily leads to the conclusion that the powers so granted are never exclusive of similar powers existing in the States, except where the Constitution has, in express terms, given an exclusive power to Congress, or the exercise of a like power is prohibited to the States.” He then proceeds to enumerate three classes of cases or instances in which the power of Congress is exclusive, and proceeds thus : “ In all other cases not falling within the classes already mentioned, it seems unquestionable that the States retain concurrent authority with Congress, not only under the eleventh amendment of the Constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws ’of the State and of the Union are in direct and manifest collision on the same subject, those of the Union, being the Supreme lato of the land, core of paramount authority, cmd the State latos, so far, and so far only, as such incompatibility exists, must necessarily yieldT
But upon this subject I do not feel at liberty to advance reasoning or authority, because it has received the critical examination of many of the greatest and most profound judges who have adorned the courts óf this Union ; whose opinions and decisions are usually .received by us upon all ..legal questions as satisfactory if not conclusive authority, and especially -so because the question has been authoritatively decided by the Supreme Court of the United .States, the last *76an(^ (constitutional exponent.; Upon this, as upon all other questions’ arising out of the Constitution of United States, or the laws of Congress, I am bound' £0 yjepj obedience to the decisions of that tribunal, for upon such questions we are subordinate.
We are accustomed on most of the subjects mooted and discussed in this as in other courts of law, to consult the decisions of other co-ordinate courts upon the same or kindred subjects, and in relation to the constitutionality of congressional action .upon the clause concerning fugitives from service or labor, I deem it not -inappropriate to refer to several cases in which the power of Congress to legislate upon the subject has either been tacitly or expressly recognized or avowed and maintained. It may be remarked here that for the purpose of the present case, it is not important whether the power under -the Constitution vests in Congress alone, or in the several States concurrently with Congress, inasmuch as the Legislature of this State has never acted on the matter.
.The case of Glen vs. Hodges, (9 John. 67) was before- the Supreme Court of New York in- 1812. It was an action of trespass vi et armis, for seizing and taking the plaintiff’s negro slave, from the possession of the agent of the plaintiff in the State of Vermont, where he had been secured as a fugitive from service. The validity of the act of Congress- of February 12, 1793, wras not questioned, and the court in their opinion refer to the act, without suggesting a doubt of its constitutionality.
'In 1816, in the case of The Commonwealth vs. Holloway, (2 Serg. and R. 305) which was a Habeas Corpus returnable in the Supreme Court of Pennsylvania, sued out to procure the liberation of a female *77negro child born in Pennsylvania, but the issue of a fugitive slave, the court contemplate the act of 1193 as a valid law. Soon afterwards, in 1819, the same court, in Wright alias Hall vs. Deacon, (5 Serg. and R. 62) recognized the act of 1793 as a valid one.
In the State of Massachusetts the constitutionality of the law in question was made a point in 1823, in the case of The Commonwealth vs. Griffith, (2 Pick. 11) and the justices of the Supreme Court of that State were unanimously of opinion that the law was constitutional, although Mr. Justice Thatcher insisted that the fugitive should be seized by the process of law of the State where he is found. So also in 1836, In the case of The Commonwealth vs. Aves, (18 Pick. 139) the same court treat the act of 1793 as enacted in pursuance of the Constitution ; and as late as 1851, in the celebrated Thomas Sims case, (7 Cush. 285) the constitutionality of the fugitive law of 1850, the law to which objections are made in the case now before us, the Supreme Court of Massachusetts, after a very elaborate argument and examination of the question, again affirmed the power of Congress to legislate upon the subject of fugitives from labor or service, and without a word of dissent from any member of that learned bench,-declared the act of 1850 to be a constitutional enactment.
Another case in 'which the power of Congress to legislate upon this subject, and the validity of the act of 1793 were denied in argument, is the case of J'tele, a negro man, vs. Martin, (12 Wend. 311) where, in a very lengthy opinion of the Supreme Court of New York, as given by Mr. Justice Nelson, the act is held to be constitutional and valid.
*78I lave thus adverted to several cases in the courts of other States, in which'the constitutional power of Congress to act upon the subject embraced within the c¡ause 0f section two of article four of the Constitution of the United States is recognized,-and I have done so because the proverbial wisdom and purity of the men who composed those courts have taught us. all to look to their opinions for instruction upon every subject connected with the science of the law. But I freely admit that we are not boxrnd to pursue the same mode of argument, nor 'to arrive at the same conclusions that these courts have pursued or arrived at, except so far as we deem them consistent with sound reason; yet I can hardly conceive it possible that a question of so delicate and important a nature as the one now before us, could have occupied the attention of those tribunals without eliciting a thorough examination, and precluding mistake. It is not important, however, to inquire how far the adjudications of the courts of our sister States ought to influence or control our decision on this point, inasmuch as I have already said the decisions of the Supreme Court of the United States have settled the question ; and until that court shall flnd occasion to review and change its own view of the subject, it is neither, becoming nor proper on my part to disobey the official requirements involved in the decisions of that court, or to test their correctness by a recurrence to the history of the times or events which produced the constitutional provision, or the intention of the framers of the Constitution, and the rules of interpretation by which it should be construed.
In Prigg vs. The Commonwealth of Penn., (16 Peters 539) the constitutionality of the act of 1793, *79concerning fugitives, so far as .it related to fugitives from service or labor, was presented for decision to tbe Supreme Court of the United States ; and if ever there was a cause thoroughly and ably discussed by counsel on both sides, and calmly and elaborately examined by the court, that is the cause. The best professional talent which could be furnished by the States of Pennsylvania and Maryland was enlisted in the argument; and the opinion of the court, sustaining the 'constitutionality of the act of Congress, was given by the very man who has furnished to the profession our most valued work on the Constitution .of the United States. This decision, so far as it asserted the power of Congress over the subject, was concurred in by every member of the court, although in relation to other points, and in regard to the-mode of reasoning adopted by Judge Story, several of the judges dissented.
Five years afterwards, in the case of Wharton Jones vs. John Van Zandt, (5 Howard, 215) the question was again urged in the same court, 'and Mr. Justice* Woodbury, in delivering the opinion of the court, disposes of the point whether the act of ’98 was repugnant to the Constitution, by saying, after a few remarks upon the subject“ That this act of Congress, then, is not repugnant to the Constitution, must be considered as among the settled adjudications of this court.” And again, in Moore vs. the People of the State of Illinois (14 Howard, 18) the doctrine of the case of Prigg vs. the Commonwealth of Pennsylvania, is reiterated, and declared to be “ that the government is clothed with appropriate authority and functions to enforce the delivery or claim of th’e *80o wner) and has properly exercised it in the act of Congress of 12th February, 1793.”
From these decisions I am led to view the subject as definitely settled, and the maxim stare decisis, as entirely applicable. I understand the Chief Justice to feel himself concluded by these decisions, so far as they declare the act of 1793 to have been the exer cise of a constitutional power by Congress to legislate, but that because they do not settle the question, whether the fugitive slave is entitled to a trial by jury, of the State where he is seized, and, because the act of 1850 confers certain powers on Commissioners appointed by the federal courts, which are claimed to be judicial, the constitutionality whereof has not been determined by the Supreme Court of the United States, he is at liberty to inquire upon these points, whether the act of 1850 is obnoxious to the Constitution.'
The force of argument which has been brought to bear, as well against as in favor of the constitutionality of the act of 1850 in respect to these questions, has, I confess, raised doubts, in my mind, but it has failed to produce that conviction which should justify a court, or Judge, to pronounce a legal enactment void, because unconstitutional, and I am therefore unable to concur in the opinion that this law is unconstitutional.
I shall briefly state my views upon these questions. The fourth section of the act of Congress of September 18,1840, provided that certain Commissioners appointed by the federal and territorial courts, shall have concurrent jurisdiction with the Judges of the Circuit and District Courts of the United States in their, respective circuits and districts within- the several States, and the Judges of the superior courts-*81of the territories, severally and collectively, in term-time and vacation, and shall grant certificates to such claimants upon satisfactory proof being made, with authority to take and remove such fugitive from service or labor under the restrictions herein contained, to the State or Territory from which such persons may have escaped or fled.” To my mind, the granting of these certificates, “ upon satisfactory proof being made,” looks very like the exercise of judicia functions, because, although the granting of the certificate is merely a ministerial act, yet the determina-' tion upon the sufficiency of the proof would seem to involve judicial power. And in this connection it is urged, that Congress cannot confer judicial power otherwise than in accordance with section one of article three, of the Constitution of the United Statesi which contemplates courts only, the judges of which shall hold their offices during good behavior, and shall from time to time receive a compensation or salary for their services. Now it is evident that these Commissioners are not judges, nor can they hold or compose courts within the meaning of this section of the Constitution, for they hold their appointment at the will of the court appointing them, and are not liable to impeachment. But the judges of several of the Territories of the United States, who hold their appointment from the President, are not appointed to hold during good behavior ; and, if I am not mistaken, there is no instance of their having been held liable to impeachment — at least that they are not so liable, has been advanced by an Attorney General of the United States.
It is said, territorial judges are appointed under the power given to Congress by the second clause of *82section three of article four of the Constitution, on f ... 7 the ground that the establishment of a judiciary for territories is a necessary incident to the acquisition 0£ territory, and the power to make all useful rules and- regulations for those territories : hut if the power to legislate upon the subject of fugitives .from labor be vested in Congress, it would seem that the performance of judicial acts might be vested in other than judges or courts, under the constitutional provision (article three, section one,) in such a case, as in the case of newly organized territories.
But it has been repeatedly held, that where, by an act of Congress, State courts or magistrates are authorized to perform acts of a judicial character arising out of the acts of Congress, they may lawfully do so if not prohibited by the State law.
Now if judicial power can be conferred by Congress upon others than courts or judicial officers known to the Constitution, it seems to me that it can make little difference whether the power be vested in a State court or officer, or in a commissioner or officer of the United States who is. not a judicial officer. In either case the power is vested in a tribunal or officer, not a court or judge, contemplated by the clause of' the Constitution referred to.
But there certainly is a degree of force in the objection that the power to hear and determine complaints and summary applications, which may and often do involve important rights of personal liberty, and require the exercise of much professional experience and wisdom, ought not to be vested in the class of officers who are known as commissioners of the federal courts, who hold their office at the pleasure of the courts; and although in ¡many instances gen-*83tlemen of acknowledged ability fill these offices, yet this of itself affords no complete answer to the objec-+irm
Without further remark on this point, I proceed to the question of the right of the alleged fugitive to have the fact of owing service or labor ascertained by the verdict of a jury.
The right of trial by jury is highly and justly esteemed, and is expressly protected and preserved by our State Constitution; and it cannot be denied that this right extends to all persons within the State^ regardless of color, and to the fugitive from labor or slavery as to the freeman, in all that relates to or affects his life, liberty or property, subject to the several provisions of the Constitution of the United States. But suppose that a demand by the executive of any other of the States of this Union upon the Governor of this State has been made, to suriender any citizen, whether he be white or black, upon a charge of felony committed in the State from which the requisition.comes. It may be that, as in the case of an unfounded claim upon the labor and service of the alleged fugitive slave, the person demanded as a fugitive from justice ought not to be delivered over; and yet if the requisition be in due form of law, and accompanied by the proper evidence that the per son is charged with the offence, the right of trial of the fact is not afforded to him here, but he is apprehended, deprived of his liberty, and transported to another and perhaps a distant State for trial. Could this be done except by virtue of a provision of the Constitution, or a treaty ? There would seem to be no real difference between the demand of a fugitive *84fr°m justice, and the claim of a party to whom it is alleged labor or service is due.
In either case there is a deprivation of personal liberty without the intervention of a jury, but it is considered essential to the complete enforcement and fulfillment of the constitutional compact, that a temporary deprivation should be permitted in the individual case, in order that the constitutional right may be secured. It is true, that in the case of a fugitive from justice, he is given into the custody of the officers of justice, with the beneficent presumption of the law in favor of his innocence, until he shall have been duly convicted ; while in the case of the fugitive from labor, he is placed under the control of his claimant, to be carried back to the State from which he is charged to have fled, with no presumption in favor of his freedom ; but this is, I think, more an argument against the policy and justice and humanity of the law, than against its constitutionality. A case might arise where, by false swearirig and conspiracy, a freeman, by the machinery of this law, might be snatched from his liberty and reduced to the condition of slavery, until, by a suitable proceeding, he asserted and obtained his freedom; but so, also, by similar means, an innocent man may be carried away charged with crime, and placed under .the necessity of vindicating his innocence in a distant State.
Upon the provisions of the Constitution concerning fugitives of both kinds, Judge Story, in his Commentaries on the Constitution, p. 677, sec. 1806, says: “It is obvious that these provisions for the arrest and removal of fugitives of both classes, contemplate summary ministerial proceedings, and not the ordinary *85course of judicial investigations, to ascertain whether the complaint he well founded or the claim of ownership he established heyond all legal controversy. In cases of suspected crimes, the guilt or innocence of the party is to he made out at his trial, and not upon the preliminary inquiry whether he shall he delivered up. All that would seem in such cases to he necessary,is that there should he prima facie evidence before the executive authority to satisfy its judgment that there is probable cause to believe the party guilty, such as upon an ordinary warrant would justify his commitment for trial. And in the cases of fugitive slaves, there would, seem to he the same necessity of requiring only prima facie proofs of ownership, without putting the party to a formal assertion of his rights by a suit at law. Congress appears to have acted upon this opinion, and accordingly, in the statute upon this subject,|have authorized summary proceedings before a magistrate upon which he may grant a warrant for a removal.”
In Sergeant's Constitutional Law, chap. 33, p. 398, it is said: “ From the whole scope and tenor of the-Constitution and act of Congress, it appears that this fugitive is to he delivered up on a summary proceeding without the delay of a formal trial in a court of common law.”
Assuming that the framers of the Constitution had in view the cases of fugitive slaves only, and that their object was to secure the delivering up of such fugitives on claim of the owner or person to whom the labor is due, it would seem obvious that if a trial by jury may be insisted upon, the determination of the question might be protracted in various ways so as to defeat the very object of the Constitutional provision.
*86^ have before remarked, tills, as well as the preceding point wliick I have adverted to, has occupied serious attention, because they involve vital and imp0rfcailt principles of no ordinary interest to tbe people of this Union. That the priceless benefits of freedom should be surrounded by every safeguard, and protected from encroachment or invasion, every man worthy to enjoy its blessings must admit; and in every relation of life we ought to contribute not only to the preservation, but to the extension of those blessings. But I am fully sensible that the duty of a judicial officer is to expound the law, not to make it, and to observe the distinction between the strict performance of what he may deem an imperative official duty, and the assertion of his rights and privileges as a citizen in the advocacy of measures which he may consider essential to the welfare or happiness of his country and his fellow-men.
There is one point in this case, and, in my judgment, the only point essential to the disposition of the case; and it is that which relates to the validity of the commitment or process b}’ virtue of which the petitioner was detained by the United States marshal. It sets forth that at a certain time and place, in this State, the petitioner, Booth, unlawfully aided and assisted one Glover, held to service, &c., in the State of Missouri, under the laws thereof, being the property of one Garland, and having escaped from such service into this State, to escape from the lawful custody of the deputy marshal of the United States for the district of Wisconsin, who had then and there* taken said Glover into his custody by virtue of a warrant issued by the judge of the United States for the said *87district, pursuant to fclie act of Congress of September 18th, 1850.
It does not appear from this- process that Grlover was committed to the custody of Mr. Cotton, the deputy marshal, uj)on claim of any person whatever, and for anything that appears, this same Grlover may have been committed by the district judge for some offence against the United States ; but the facts set forth in the process would not, in my judgment, constitute an offence within the twenty-second section of the act of Cóngress of 1190. The seventh section of the act of September 18th, 1850, makes it an offence to aid or assist a person who has, upon a proceeding unc|sr that act, been placed in the custody of a person legally authorized to detain him ; but the process in this case does not show that Grlover was so detained. He may have been a fugitive from labor, and yet he may not have been claimed, and if so, the aiding in his escape would not have been an offence under the act of 1850. I shall not pursue the subject farther, but shall rest content by saying that I concur with my brethren in holding the petitioner entitled to be discharged, because the commitment sets forth no just cause of detention,
Smith, J. *When this case was originally before me, I gave to the questions involved in it all the investigation which the means then within my reach would permit. The conclusions to which I then arrived *88have been made, and rightfully made, the subject of criticism and investigation. In addition to what I then said, I have now to remark that there are some prjncjp¡es involved in this case not noticed in my former opinion, which seem to require attention ; and some doctrines have been advanced at the bar, which, in my judgment, ought not to be passed over in silence. A question of the last importance to the States and people is here brought directly under judicial cognizance, and comprehends the principal elements in the theory of our complex system of government.
One great aim of the founders of our government* (among others,) was, to secure beyond contingency personal liberty, and to protect and preserve, as fa^‘ as practicable, the independence and sovereignty of the respective States, (without whose agency such personal liberty could not be protected and secured) as far as was consistent with the practical efficiency of the federal government about to be organized. A mere glance at the history of the times, at the debates in the national convention that framed, and of the respective State conventions which adopted the Constitution, will suffice to convince us that the respective States were regarded as the essential, if not the sole guardians of the personal rights and liberties of the individual citizen. Mr. Justice Johnson, of the Supreme Court of the United States, in the case of Martin vs. Hunter's lessees, (1 Wheaton 362) says: “So firmly am I persuaded that the American people can no longer enjoy the blessings of a free government, whenever the State sovereignties shall be prostrated at the feet of the federal government, nor the proud consciousness of equality and security, any longer than the independence of judicial power shall be maintained *89consecrated and intangible, that I could borrow the language of a celebrated orator, and exclaim,11 rejoice that Virginia has resisted” This is but one among a vast number of similar expressions ; but I prefer to quote it, because it was uttered at an early period in our national history ; because it was uttered in a judicial opinion, and in reference to a conflict of jurisdiction between the State and federal judiciary, which did not '■'■dissolve the Union?'
It is important to recur to the elementary prinei-pies on which our government is founded, more frequently, perhaps, than the apparently successful career of the Republic would naturally tend to move us. Nothing is more certain, than that “ eternal vigilance is the price of liberty,” and that “a frequent recur, rence to fundamental principles” is the only means of sustaining the government in its original purity, and of preserving the original land-marks established by its framers. The subjection of judicial decisions to elementary criticism, will never be denounced as audacious, but by those who are content to follow prece. dent, even though precedent overleap the law, and become the mere pretext for usurpation. To such tests ought those who make decisions, as well as those upon whom they may operate, to be willing to subject them. It should be remembered, that •“ error does not become truth by being often repeated ; nor does truth lose any of its force or beauty by being seldom promulgated.” Nor does vice become virtue by persistence in 'its practice; nor bad government grow better by acquiescence in its evils ; nor, where a people have adopted a written fundamental law, for the government alike of themselves and their rulers, does *90infraction of that law become healed by a denial its occurrence. •
The “rule of judicial order stare decisis,” is appre-cja^ec[ largegt measure of its value or importance, and will not be departed from on light or trivial grounds. When rights have become vested under ju. dicial decisions, and especially when the policy of personal transactions has been shaped under a long course of judicial determinations, courts and judges will hesitate long before they will disturb the order and establishment of things and transactions predicated upon them. Distrusting suggestions, however plausible, and doubting conclusions, however forcibly urged, they will pursue the diverging and unwelcome pathway with faltering step, and anxious distrust, until they are lost in the mazes of uncertainty, on the one hand, or, on the other, they emerge into the plain highway of truth, which all may pursue with confidence and safety. But to say that such decisions preclude investigation or review, is to say that error may be made perpetual, and that the judicial department is an impregnable fortress, which no force of reason may approach, and no power of truth may assail. Such a rule would have driven from the bench of England one of the brightest luminaries of legal science, or would have imposed restrictions upon a genius which rescued the common law from the manacles of barbarism, and gave it a vitality equal to the progress of the nation upon whom it operated, and a power adequate to its own regeneration.
I am willing that the decisions of the Supreme Court of the United States, in every case determined by them, within the scope of their jurisdiction, should *91be regarded as full' and binding authority, as the law of the particular case so determined. But when it is strenuously contended, that I am compelled to adopt their interpretation of the Constitution and laws of the United States, and of their own powers, and the powers of Congress, without thought or inquiry — to take “ what is written is written ” as the end of the law, simply because it is written — that my own conscience and oáth must be tamely subjected to the prescriptions of another tribunal, governed by the same laws and bound by the same oath — notwithstanding the high respect, approaching even to veneration, which I have for that high tribunal — I must be permitted to say, that no man or body of men is made by the Constitution the keeper of my conscience, nor does it impose upon any man or body of men the fulfillment of my official oath and obligations, or the power of releasing me therefrom. When duty and obligation require a steady and un deviating adherence to authority and precedent, no one will be more firm and anxious in insisting upon such adherence. But when the like duty and obligation require a departure from such precedent and authority, in obedience to a paramount law — the fundamental law, to which each and all are equally bound — I hope to be found just as firm in my adherence to the lattei.
Perhaps it would not, under other circumstances, be required to reply to suggestions which counsel have deemed worthy of energetic expression; but considering the tone and manner in which they have been urged, it may not be unimportant to notice one, and perhaps others, as they may incidentally occur in the discussion of the principles which have been brought to bear upon the consideration of this case.
*92The counsel opposed to the application of tlie petitioner have thought proper to admonish this court “its duty in troubled times,” “and to teach faction -j. no j-aclicial sanctuary.” If, by this, it was intended to intimate that the power or tendency of faction might become the iule of its action, or should be considered in its judgment, instead of the law as it is, he ought to have reflected longer, and to have considered more maturely, whether th’e bench or the bar have so far forgotten their allegiance to the law, as to pursue the ‘devious and turbulent pathway indicated by the suggestion. The history of the profession does not warrant it. The positions assumed by the Justice on the primary meeting do not justify it.
We know no party or faction. We desire to know none. The law, and the law only, and its due administration, is the object of our solicitude. Our aim is, to adjudicate upon cases, not parties; to apply the law as it is, not as we may think it ought to have been; to construe it as the properly constituted lawmakers have given it to us; not as from their acknowledged wisdom we may suppose they ought to have framed it.
Nor, as has been suggested, in construing and applying the Constitution, “ and the laws made in pursuance thereof” ought our reason and judgment to be thwarted by the possibility of conflict with other tribunals. If the laws made “in pursuance” of the Constitution are so imperfect that their due administration necessarily leads to collision, the remedy must be sought within the scope of the legislative depart* ment, ox*, by the primary action of the people, within their scope, by an amendment to the Constitution itself. This court has no power to remedy the defect. *93It .is properly restricted to the interpretation and administration of the laws as it finds them, and must so administer them, or become faithless to its high and solemn functions and obligations.
But, as I said on a former occasion, I apprehend none of these dangers. The line of demarcation is not very dim ; and a just regard to the appropriate attributes and powers of the State and Federal sov-ereignties, on the part of the functionaries of each, is the safeguard which the Constitution has itself provided against all attacks; which has hitherto proved adequate to every emergency, and which was deemed by its framers far safer and wiser, than to provide one sole, exclusive and ultimate umpire in either, which might at its option absorb the powers and sovereignty of the other.
Indeed, it may well be affirmed, that this very di. vision of sovereignty between the States and the federal government, without providing in either an ultimate and exclusive judge of the respective powers of each, but binding all alike to fidelity and obedience to the prescriptions of the Constitution, is not the least mark of the wisdom and foresight of those who framed this complex and novel system. On the one hand, if the sole power of determining upon the respective powers of both governments, were confided to the general government, it might lead to encroachment upon, and ultimate extinguishment of the State sovereignties: on the other, were it confided to the States, the powers delegated to the federal government might, one by one, be impaired, or swept away, until at length it would be left powerless to accomplish the objects of its creation. But by prescribing definitively the powers delegated to the general gov*94ernment, by specific grant, on the one band, and, on tbe other, by declaring in their fundamental law, that the powers and attributes of sovereignty not granted oi> 1.epüq-ujg]iec]j were reserved to the States and to the people, the federal government was ordained to move on within its own sphere, distinctly prescribed by its charter, and the States were left in the full enjoyment and exercise of the powers of complete sovereignty with which they had not parted — each operating as a check upon the other' — -neither inferior» but both supreme within their appropriate sphere— each quietly and almost imperceptibly repulsing the other, whenever the prescribed line should be overstepped — each,' by the necessary operation of its own functions, constantly admonishing the other of its approach to the line of demarkation, and, in its turn, being admonished of its own advance by the proximity of the other. Occasional conflict would sharpen investigation, whet official conscience, and thus lead to a correct understanding of the'true boundary of jurisdiction; and fidelity to the great, fundamental and paramount law, to which the officers of each sovereignty are equally bound, would restrain both and all within their true and proper limits.
Such was the theory of the framers of the Constitution of the United States, concerning its practical working upon a free and intelligent people, already thoroughly schooled and disciplined in the principles and practice of self-government; and time and experience have fully justified their opinions and their faith,.
The course of the argument of counsel upon the review of the positions assumed by the justice of this court to whom the original application of the peti*95tioner was made, (without referring, or attempting to refer specifically to the several objections taken to those positions,) makes it proper' for me to refer briefly, and in very general terms, to some of the propositions advanced: like, that this court is bound, absolutely, by adjudications in analagous cases upon an analagous statute, by the decisions of the Supreme Court of the United States; that to the decisions of that court we are bound to yield, as to the decisions of a conceded appellate tribunal, with a “ dignified judicial subordination.”
I cannot yield my assent to the proposition. I do not so understand the relations of the respective courts. Especially, were the doctrine admitted in general, without' danger or detriment, it would be fatal to recognize it in a case like this, involving the personal liberty of the citizen brought under examination through the instrumentality of the writ of Habeas Corpus.
I cannot, here, go over and attempt to sustain those positions first assumed. They are assailed by assumed authority, and by such authority only. Let authority have its just weight, on the one hand, and reason and history, on the other. But, as admonished by the Eather of our country, familiar with the difficulties and obstacles which interposed to the formation of our national government, to recur frequently to elementary principles, it may not be improper, in recur rence to those fundamental principles of our government, to refer to what would seem an obvious and primary principle, by which the federal compact is to be interpreted, and for this purpose to look to the origin as well as the consummation of the system of *96government established thereby, viz: the source of federal power, and the extent of the power derived.
The Constitution of the United States is, in its more esseiltial and fundamental character, a tri-partite instrument. The parties to it are: The States, The People, and The United States. The latter is, indeed, a resulting party, brought into existence by it, but when thus created, bound in all respects by its provisions. It is practically represented by its several departments, deriving their powers directly and severally through its respective grants. It is derivative, not original. Previous to the operative vitality of the Constitution, this third party to the instrument was non-existent, and of course powerless. The other two parties, the States and the People, were pre-existent, endowed with all the essential elements .of sovereignty.
One great and fundamental mistake has been made in respect to the second party to the federal Constitution, viz: the People. This party, here spoken of} cannot be considered as the people inhabiting the whole territory embraced within the boundaries of the original thirteen States, as operating in mass, as one undivided and indivisible community. Previous to the formation of the government of the United States, there was no such political existence ; and of course, there being no such government, there could be no people of such government, or political division or organization. It is unnecessary, in this connexion) to refer to the confederation of the States, because that did not, in fact, constitute a government; nor will any one pretend that the people of the confederated States created the present federal government *97in tlieir capacity of a primary and ultimate source of political power, operating to institute a new and original government; because, to have done this, they must have necessarily first dissolved the State governments under which they were then living and acting, and absolved themselves from allegiance thereto. They did no such thing. The “people” mentioned in the preamble to the Constitution, and often referred to in judicial discussions, must, it seems to me, necessarily mean the people of the United States; that is, the people of the several States united; so many uniting as were deemed a sufficient number to warrant the institution of the new government, and render safe the delegation of certain powers before possessed by the respective States. The State governments pre-existed. If a portion of the citizens of a State had assembled to divest the State of an attribute of its sovereignty, without the assent of the State, it would have been treason, or revolution. If the people of the whole territory of the thirteen States had combined to divest the respective States of any of their proper attributes of sovereignty, without the assent of the States, it would have been closely allied to treason or conquest. But it was neither the one nor the other. The people referred to, must be intended to mean the people of the respective States, operating legitimately through their properly constituted authorities, in conformity with their legally established modes of procedure. As the people of the respective States, did they adopt the Constitution. By the authority of the STATES were the people called upon to adopt or reject the Constitution. By the people of the respective STATES was it adopted *98and when ratified by nine STATES, Const. U. S. Art 7, (not a majority of the people of the Union to be formed,) was it to become operative. The States, as suchj were distinctly recognized through every stage of progress, from the inception to the consummation of the plan of Union; and] ¡through the State organizations only could the first step be taken, and through those organizations only can the people of the Union now impress their will upon the measures or action of the government. Indeed, the federal Constitution provides no mode by which, in any case, can the people of the Union affect the federal government, but through the State organizations, and by the instru-mentalities furnished by the governments of the respective States.
The States, therefore, as pre-existing sovereignties, are clearly parties to the federal compact, and, together with their respective people, were the creators of the third party to the compact, viz: The United States.
Nor was the Constitution of the United States submitted to the whole people of the thirteen States for adoption, but to the people of each State, represented in convention called for that purpose, by the authority of each State. On the question of its adoption or rejection, the people of each State, whether many or few, had an equal voice. They spoke on that question for their State, and the small States had an equal voice with the large.
Nor was the Constitution to become operative when a majority of the whole people of the proposed Union should ratify it, but when ratified by the conventions of nine States, and then only upon the States, *99and the people of the States, so ratifying it. It had no operation upon the States or people of the States which did not ratify it.
The States derive not one single attribute of power or sovereignty from the Constitution of the United States. On their separation from Great Britain, they were each sovereign and independent; as completely so as the government from which they had revolted. They retain all the attributes of sovereignty which they have not delegated or relinquished. Nor does the'Constitution address itself, in a single instance, to the people of the whole Union, as one indivisible community, but always to the people, or to the con' stituted authorities of the respective States. But the new entity brought into existence by the Constitution, does derive every jot and tittle of its power from that instrument. Without it, the States existed and performed all the functions of government. Without it, the federal government had not a shadow of existence. If that instrument ceased to operate the States would move on, performing their present functions, and probably resuming the powers before delegated; but the government of the Union would cease altogether.
I make these remarks, because persons in their zeal for federal supremacy seem to have lost sight of the true relations subsisting between the confederacy and its members. The rights and sovereignty of the latter would seem to be sacrificed to the exaltation and glory of the former. But returning to elementary principles, it will not be difficult to determine the just rights and limitations of both.
These remarks are made also for the purpose of exhibiting more clearly, principles of interpretation *100which are to guide us m the construction of the Cont ■ ° stitution and laws of Congress, whenever they involve a question of the relative rights and powers of the g^e anq federal government, viz: that the State governments are primary and original; the federal government is derivative; the former having the rightful enjoyment of all powers inherent in a sovereignty which they have not relinquished; the latter rightfully exercising only those powers which were delegated.
Test the third clause of the second section of the fourth article of the Constitution by this rule : “ No person held to service or labor in one State under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service or labor; but shall be delivered up on claim of the party to whom such service or labor may be due.” What power or authority did the States relinquish by this clause % At most, the light, and power, if you will, to enact any law or regulation by which such escaping fugitive shall be discharged from such service or labor. They also covenanted that the fugitive should be delivered up. But did they delegate to the federal government the right to enter their territory and seize him? Did they au-thorise that government to organize a police establishment, either permanently or temporarily, armed or unarmed, to invade their territory at will, in search of fugitives from labor, ranging throughout their whole extent, subject to no State law, but enjoying a defiant immunity from all State authority or process, while executing their mission ? Did the States relinquish the right or power to prescribe the mode by which they would execute their own solemn com*101pact, in delivering up the fugitive? Did they, assenting to this provision, suppose that they were yielding assent to the proposition now assumed as the basis, or at least the excuse, for federal interference, that they were incapable, from moral obliquity or otherwise, of executing the compact themselves ? and therefore to preserve a remnant of fidelity, they would deposit this trust with the general government ? The whole history of the clause in question precludes such hypothesis. The clear, indubitable construction of the words precludes it. A just con ception of the relative powers of the two govern" ments, before stated, precludes it. Every just regard" to dignity and self respect on the part of the States forbids it. Every sentiment of delicacy, not to say justice, on the part of the national functionaries should revolt at it. But the contrary is the fact, as asserted» I would, if I could say, implied, by the tenor of the argument; and these assumptions, so derogatory to the good faith of the States, so repugnant to the theory of our system of government, so irreconcilable with the principles of the whole structure, prostrating the creators at the feet of the creature ; disrobing the States, the sources of power, of almost every characteristic of integrity and virtue, and exhibiting the federal government as the only safe depository of those attributes; are not only made the foundation of legal argument, but they claim to be based upon judicial authority, absolutely controlling all official duty, requiring absolute and unqualified submission on the part of the States whose patriotism and' good faith are thus impugned, and demanding “ a dignified judicial subordination!'’ on the part of the-State courts, in order to “ maintain the rule of judir *102'der stare decisis” as established in the case of Prigg vs. Pennsylvania.” 16 Peter's Pep. 520.
Nor are these assumptions unsupported by the 0pjnj0n 0£ {pe court that case, to which obedience is invoked. On the contrary, they include and form the very groundwork' of the decision, as a few extracts from the opinions of the judges will show. Mr. Justice McLean says, “ If the effect of it” (the clause in question) “ depended in any degree upon the con struction of a State, by legislation or otherwise, its spirit if not its letter would be disregarded.” (16 Pet. Rep. 622.) Not mere waywardness to the State legislatures, is here imputed, but contempt of constitutional obligation ; imputed, not only to the legislatures, but to the courts likewise. Be the imputation what it may, the argument is, that because the State functionaries are unfaithful to their constitutional duties, therefore the federal officers must take upon themselves their performance.
Again, page 661, Mr. Justice McLean says, “The States are inhibited from passing any law or regulation which shall discharge a fugitive slave from his master, and a positive duty is enjoined on them to deliver him up.” He goes on to show the necessity of the provision, and then asks “Now by whom is this paramount law to be executed ? It is contended that the power rests with the States. The law was de-signed to protect the rights of the slave holders against the States opposed to their 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 legislation. It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies *103that ever assembled, they were, perhaps, the most exempt.”
"Was it folly in the framers of the Constitution to “ enjoin a positive duty upon the States to deliver np the fugitive” and also to leave them the adequate power to fulfil that duty ? This “ paramount law” “ enjoins a positive duty” upon the States, and yet in answer to the question “ by whom it is to be executed?” it is asserted that it would show inexperience and folly to leave the party, upon whom a duty is enjoined, the power to perform it. Would it not rather show most consummate folly, to enjoin the performance of a positive duty upon the States, and at the same time deprive them of all power to execute it “by legislation or otherwise”? A “positive duty is enjoined” and yet it is consummate folly to leave' “ the effective power” to perform that duty in the hands of those upon whom it is enjoined ! Is it sup. posable that the States would enjoin upon themselves a positive duty, and then voluntarily relinquish all power to perform it? The learned Judge is doubtless correct in saying that a positive duty is enjoined upon the States. Concede this, and it irresistibly follows that the power to perform it remains with the States. Mr. Justice McLean must either retract from his position that a duty is enjoined upon the States, or abandon his position that they have no power to execute it by legislation or otherwise. Both cannot stand. It is immaterial which is surrendered, one is worthless without the other, and the assertion of the one is fatal to the other. A “ positive duty is enjoined upon the States to deliver up the fugitive,” yet, if left to the States to provide for its performance, or directly perform it, “ by legislation or otherwise,” the letter *104or spirit of the injunction would he disregarded.; but take away all power to execute the injunction and its fulfillment is secured!
Again, Mr. Justice Story who delivered the opinion of the court in the case above mentioned, (Prigg vs Penn.) speaking of the clause in question, says : “ He (the master) may not be able to lay his hands upon his slave. He may not be able to enforce his rights against persons who either secrete,or conceal, or withold the -slave. He may be restricted by] ocal legislation as to the mode of proofs of his ownership ; as to the courts in which he shall sue, and as to the actions which he may bring, or the process which he may use to compel the delivery of the slave. Hay, the local legislation may be utterly inadequate to furnish the appropriate redress, by authorizing no process in rem,- or no specific mode of re-possessing the slave, leaving the owner at best, not that right which the Constitution designed to secure, a specific delivery cmd repossession of the slave, but a mere remedy in damages ; and that perhaps against persons utterly insolvent or worthless.”
“ One State may require the owner to sue in one mode, another in a different mode. One State may make a statute of limitations as to the remedy in its own tribunals, short and summary; anothér may pro. long the period and yet restrict the proofs. Hay, some States may utterly refuse to act upon the subject at all; and others may refuse to open their courts to any remedies in rem, because they would interfere with their own domestic policy, institutions, habits, &c.
“ The slave is not to be discharged from service or labor, in 'consequence of any State law or regulation. How certainly without indulging in any nicety of criticism upon words, it may fairly and reasonably be *105said, that any State law or State regulation which m-terrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and^abor, operates pro tanto a discharge of the slave therefrom* The question can never be how much the slave is discharged from; but whether he is discharged from any, by the natural and necessary operation of State laws or State regulations. The question is not one of quantity or degree, but of withholding or controlling the incidents of a positive and absolute right.”
Here is the same assumption of State infidelity which pervades the reasoning of the whole case. The States will not execute their own covenant, and therefore the federal government will execute it for them. Mr. Justice Wayne also, adopting the reasoning of the court in the opinion delivered by Judge Story, indeed I may say the language, for Judge'* Story uses almost precisely the same, says:
“ If, then, in a controverted case, a person charged as a fugitive, shall be discharged under a remedy legislated by a State, to try the fact of his owing service or labor, is he not discharged under a law or regulation of a State ? It is no answer to this question to say that the discharge was not made in virtue of any law discharging the fugitive from servitude, and that the discharge occurred only from the mode of trial to ascertain if he owed service and labor. For that is to assume that the provision only prevented discharges from being made by the States by enactment or law declaring that fugitive slaves might be discharged. The provision will not admit of such an interpretation.”
“Would not the postponment of the trial of a *106fugitive, owing service or labor one month, be a loss to the owner of his service equivalent to a discharge for that time ? And if a State can postpone by legisla-the tr^il for one month, may it not do so for a longer time ? And whether it be for a longer or a shorter time, is it not a discharge from service for whatever time it may be ? It is no answer to this argument to say that time is necessarily involved in the prosecution of all rights,” &c.
In all of these passages, the necessity of federal legislation, and consequent judicial action, is urged, upon the assumption that the States will not, and therefore the federal government should, carry into effect this provision of the Constitution; imputing infidelity to the former, and claiming exclusive fidelity in this behalf, for the latter.
But I will not pursue this subject further. It is not pretended that there is any direct grant of power to the federal government in this clause, nor, that it is incidental to any other direct grant. But it is as' sumed, first, that a duty is required of the States to be performed; and because it is apprehended that the States will not perform it, therefore the federal government may, and even ought to perform it. Once admit this rule of interpretation, and the blindest cannot but perceive, that Congress may, as occasion shall seem to suggest, assume the entire duty of local legislation for the States, and that the whole power of internal police of the States may be usurped by the respective departments of the general government.
But I cannot pass over these two paragraphs without a word of comment upon the mode of reasoning here adopted, and the peculiar application of language, not indulged in, but rendered necessary to sus*107tain the premises assumed. The Constitution provides that the fugitive from service or labor shall not be discharged from such service or labor by any law or regulation of the State into which he may have fled. The court say that the time necessarily occupied in adjudicating upon the claim of the alleged master, “ is a discharge pro tanto? A discharge pro tmto ! How so ? What is a discharge ? The slave owes service to his master for and during his life. A discharge from “such” service or labor is a release, an emancipation therefrom ; not for a time, but for life-If I owe a note for one hundred dollars, and am exempted from the payment for a time after it becomes due, am I discharged from it ? pro tanto t or in any sense? A part of it may be paid or otherwise satisfied, and thus discharged, but being once discharged, it is discharged forever. A postponement is not a discharge in any sense, and it is submitted that such a use of the word does violence to the language of which it is a part. To use the word in such a sense, is to confound all distinctions in the use of language. If this is to be considered a judicial interpretation of that word, what consequences would ensue ? The giving time of payment would operate as a discharge of the debt. The law which prescribes the course of procedure to ascertain the validity of a claim, would operate as a discharge of the claim. If I replevy my horse, my title to him is discharged pending the litigation. Is such language, the English language ? Is this such a judicial interpretation of the word “ discharge ” as to be binding upon the courts and people of the United States ? If we agree to give further time for the payment of any obligation, we must not say, in consideration &c., the time of payment of the *108W1™in obligation is extended one month, but we must say, tbe payment is discharged, one month! If the executive wish to grant leave of absence to a subor-¿jüa{;e 0p|cer) be must say he is discharged from service for the time. The slave has escaped from Ms master. The State in observance of its compact, provides for his arrest, and is proceeding to capture and deliver him up to his master, and this procedure is, according to such interpretation, discharging him! He was already beyond the power of the master, he had escaped, and the State has made regulations by which he shall be deprived of all the advantages he has gained by his escape; by which he is to be cap* tured and delivered up ; and this is called a “ discharge ! ” The slave has escaped, he is seized and delivered up by the State, supposing that she is fulfilling her compact in that behalf. Not so, however, she is constantly discharging the fugitive, “jjro tanto? and when the work is done, the escape is intercepted, the fugitive examined and delivered up to his master, the State finds out that she has not been delivering him up, but discharging him all the while, pro tanto* minute by minute, and when the work is done, and faithfully done, he is nevertheless not delivered up, but discharged ! ! ! It is certainly consoling to the States, to be told, that to deliver up the fugitive is “ a positive duty enjoined” upon them, that they have no power to do so, and that 'when they are delivering him up, they are nevertheless discharging him. If this be law, it is better, far better, to let the fugitive run» throw open the gates of our highways, and speed his progress, than to incur the guilt of discharging him» by seizing and delivering him up to the master on his proof of service due. Who does not see that this *109would be a perversion of language ? and yet it is precisely the use of the word, which becomes essential to the positions assumed by the court, and which, it is contended, is now consecrated and fixed, by the “rule of judicial order, stare decisis.”
Let it not be said that this is a mere verbal criticism. It is far from it. The use of the word in the passages quoted was not merely accidental — a mistake, to which all are liable ; but it is studied, labored, and argument is strained, in order to justify its propriety. I desire to treat the opinions of the court in the case in question, with entire respect; but respect is also due to our mother tongue. “Words are not mere arbitrary signs of ideas,” to be altered and moulded at the pleasure or convenience of the writer. They are “living powers,” demanding a fealty that admits of no evasion; giving to language laws which no judicial mandate can change, and no legislative enactment can repeal; ruling and guiding families, circles, communities and nations. To pervert, or change, or destroy the genuine meaning of a word, may be to sap the very foundation of a nation’s rights and liberties; it certainly is, to rob it of one of its dearest rights, that of expressing its wants and its woes, its affections and its joys, its duties and its rights. I have a right, therefore, to protest against this perversion of the use of this word “ discharge ” ; for it is a part of my language — a sovereignty above State and National, the sovereignty of thought and affection.
Mr. Justice Wayne continues : “ The question here is not as to a time being more or less necessary, but as to the right of a State,' by regulations to try the obligation of a fugitive to service or labor, to fix in *110discretion tTie time it may take.” Here is the same implied distrust of the States that is character-of the reasoning of the whole case. But is it 310^. singUiarj that after deciding that the time necessarily occupied in the trial of the “obligation of a fugitive to labor or service,” is a discharge from such “obligation” pro tanto, and hence the States could not regulate the trial, it never occurred to the court, that Congress could no more “ discharge ” 'a slave from such “obligation,” even 11 pro tanto” than a State? That to admit the premises and conclusions, and apply them in their full extent, would set the Union in blaze ?
It is not pleasant to refer to an opinion of tire Supreme Court of the United States in this manner. I would not have done so, if, from the character of the reasoning, in this behalf any other mode could have been perceived. Ordinarily, to quote the decisions of that court accurately, is to pay them the highest possible respect. If, in this instance, a fault is aj>pa-rent,it must be attributed to the fact, that the objects of veneration sometimes, perhaps to indicate a deeper devotion, interpose obstacles in the pathway of pilgrims to their shrine.
The course of the argument has imposed upon me? a necessity to examine further the case of Prigg vs. Pennsylvania. It is cited as binding upon our consciences. It is claimed that it is unbecoming in a State court to question its authority, or to subject its reasoning to elementary criticism. I deny its au. thority. But if I did not, I should yet claim the right to test its doctrines and reasoning by those rules which are common to all human conclusions, and which are the law of the human mind. I do not *111mean to be understood, that a subordinate tribunal may lawfully resist the mandate of a superior, merely because the reasoning by which the decision of the latter is supported, may not exactly commend itself to the mind of the former. But there -are certain rules common to every mind capable of reasoning, which are the law of its action. Common consent, or perhaps a more profound cause, has fixed to certain words a meaning, and to language certain forms, which become the law of the language, and which the decision of no tribunal can alter or subvert. So, in the formation of governments upon written constitutions, the intention and object are, to establish certain rules more or less specific, by which all its departments shall be governed, and which are above all rules prescribed by the tribunals organized by such government, from which they are not authorized to depart; and whenever they do depart therefrom, the rules prescribed by the fundamental law, must prevail in' stead of such decisions. This is not detracting from the weight or authority of judicial determinations. It is only saying that the authors of such determinations are subordinate to a superior law, the law of their own creation and endowment. Suppose the Supreme Court of the United States should direct a State Supreme Court to reverse its judgment in a case of which the former should assume appellate jurisdiction, and order and adjudge,in case the State court should neglect or refuse to do so, the judges thereof should respectively, be capitally executed. Would any executive officer of the federal government be found insane enough to execute such judgment? This is, indeed, an extreme ease, but it illustrates the existence and vitality of constitutional law, above the rule of action resulting *112from the position assumed in "behalf of the decisions of the Supreme Court of the United States.
But to return to the decision in the case of Prigg vs. Pennsylvania. In the first place, it should he observed, that the decision of the case by the State Supreme Court was pro forma merely. The responsibility of deciding upon the matter by the latter court was avoided, (if my memory serves me, in conformity with a special act of the legislature of that State,) and by common consent, the United States Supreme Court was charged therewith. )The question of jurisdiction was not raised at all. Jurisdiction was assumed, and the case proceeded, in order “ to put to rest certain ' vexed and agitating j questions with what success, time and experience have unfortunately shown. If that court had no jurisdiction, that fact alone would strip its decision of all claim to authority. However patriotic the motives which induced the one court to concede, and the other to assume jurisdiction, it is not improper, perhaps, to remark, that one State has not the right to make a mere pro forma decision upon a given subject matter, foiqjthe purpose of conferring jurisdiction upon the Supreme Court of the United States, and by such process to bind every other State. If one State chooses voluntarily to relinquish its own sovereignty, it by no means follows •that the other States have thereby relinquished theirs. If the consent of Pennsylvania could give jurisdiction in that case, hers was not the consent of all. If there was no jurisdiction, the decision is without legal effect for any purpose.
But, without at this time further questioning the jurisdiction of the court, and without admitting it, let us endeavor to discover the point or points in judg*113ment, necessarily involved for the purpose ot deter mining tlie case. Pennsylvania in 1826 had, at the request of Maryland, passed an act to provide for the surrender of fugitives from labor or service, for the protection of free negroes, and to punish kidnapping-The plaintiff in error had seized and taken from the State of Pennsylvania, a negro woman and her children, one of .whom was born in Pennsylvania more than a year after her escape thither, contrary, as was alleged, to the provisions of the act, and was indicted for kidnapping. He was tried. The jury found a special verdict, setting forth all the facts of the capture, <&c., upon which the Court of Oyer and Termi-ner pronounced the defendant guilty. The case was removed to the Supreme Court of the State, where the judgment of the court below was affirmed pro forma, and thereupon a writ of error was issued by the Supreme Court of the United States to the Supreme Court of Pennsylvania, to remove the case to the former for review. This is a concise, not a full, but sufficiently full statement, to show upon what the Supreme Court of the United States had to adjudicate. The prisoner was under indictment for the violation of the statute of Pennsylvania. If that law was repugnant to the Constitution of the United States, or to the laws of the United States made in pursuance thereof, his conviction was wrong; otherwise it was valid, and sentence should have followed. "What, then, was the question before the court necessary to be decided ? Not, whether Congress had exclusive power to legislate upon the subject of fugitive slaves; not whether the States had concurrent power with Congress; but simply, was the law of Pennsyl*114vania repugnant to the Constitution of the United States, Of to any law made in pursuance thereof?
It is admitted that the States can pass no law or regU][atx0Q by which the fugitive from service or labor may be discharged therefrom. It is further admitted, that a duty is enjoined upon the States to deliver him up, on claim of the person to whom such service or labor is due. This covenant or compact has the force of constitutional law, and no State law repugnant to its provisions can be valid, but every such law is void. The simple question in the case referred to, was, — did the law of Pennsylvania contravene that provision of the Constitution ? The law of Pennsylvania under which the prisoner was indicted, was the subject matter of inquiry. Its conformity with, or repugnance to, the constitutional provision, was necessary to be decided; nothing more. Admitting, for the sake of the argument, that the Supreme Court of the United States had the power to say to the State of Pennsylvania, that this law of hers was repugnant to the constitutional provision in question, it was not necessary to declare that she had no right to legislate at all in reference to that subject; nor to declare that the federal government had the sole and exclusive power of executing the provision; nor to declare that Congress had any such power of legislation, if the statute of Pennsylvania was repugnant to the provisions of the Constitution. The case in question, therefore, can only be authority, if authority at all, in relation to the particular point in judgment, viz : the constitutionality of the statute under which the prisoner was indicted. Argument may have taken a wider range ; the course of discus*115sion may have had a wider scope, in illustration of the decision in the written opinions; hut these were obiter dicta merely, and not binding at all. It may have been res adjudicando, whether the legislation of Pennsylvania in that behalf was forbidden by the Constitution, but not whether any legislation by the Slate could be constitutional; whether the State had legislated in a manner forbidden by the Constitution, but not whether she had power to legislate at all. These, and other questions nearly allied, were not necessary to the decision of the case, and the only point judicially determined was, that the statute of Pennsylvania, under which the plaintiff in error was indicted, was in conflict with the clause of the Constitution of the United States respecting fugitives from labor; and that simple point in no wise affects the questions involved in this case. It is indeed true that other points were discussed, and, by a majority of the court, attempted to be decided and “put forever at rest” ; and it is equally true, that the minority positively protested against such obiter dicta, or earnestly dissented from the conclusions to which the majority had arrived.
The majority of the court decided that the 3d clause of the 2d section of the 4th article of the Constitution gave the owner of a fugitive slave the right to seize him, in any State in the Union, without process, and take him back to the State from which he escaped, and that the law of Pennsylvania which interfered with such right was repugnant to the clause itself, and therefore void. This was the point in judgment. This was the legal scope of the decision, and no more. And it is cheerfully admitted that any court, State or National, having jurisdiction of the subject matter and the *116parties, when the case requires it, is bound to declare any State or federal statute, which is in conflict with that clause of the Constitution; null and void. But it -g na|. ac[m;tted that the doctrine of the case, as attempted to be established, is the true doctrine, or that it is at all compatible with the police power of the States.
But we will take the case as the majority have presented it, comparing occasionally the opinions delivered, consentient as well as dissentient, with each other, and with those rules of interpretation of the Constitution, which the Supreme Court of the United States has itself long since established, and which have been adopted also, with few exceptions, by the courts of the respective States.
The first observation which forces itself upon the mind, upon an examination of the case, is, that all the rules of construction theretofore established for the guide of the federal as well as State courts, in the interpretation of the Constitution of the United States, are utterly repudiated.
Among the rules of interpretation considered to be firmly established, which particularly concern the matter in hand, is the one laid down in 1 Story's Commentaries,, 409-410. It is as follows: “ A rule of equal importance is, not to enlarge the construction of a given power beyond the fair scope of its terms, merely beccmse the restriction is inconvenient, impolitic, or even mis-chievousT Yet the whole tenor and force of the argument in behalf of the assumption of federal authority for the execution of the compact in question, rests solely upon the inconvenience of State action, or the mischief resulting from the omission or refusal of the States to act. What is the “fair scope of the terms” *117of the clause ? It is submitted that it is clear, definite, incapable of enlargement or restriction. The States have agreed that escaping slaves shall not be discharged from service or labor by the operation of their own laws, but that when claimed within their territory, and the claim established, shall be delivered up. This is the extent of the obligation. Is it not to enlarge the scope of its terms, to hold, that the States have relinquished all power to provide the means and mode of performing this duty ? — that they have thro wnopen their territories to incursion by fugitive hunters, and relinquished all power to protect their own people from false charges of escape, or of the obligation of service? — or from assault and outrage during the search? To hold that the mere covenant not to discharge, and to deliver up on claim, is a grant of power to the federal government to invade their territory and seize— when not one word of grant is found among the terms used, or necessarily implied ? And do not the passages heretofore quoted conclusively show, that the power of Congress is deduced solely from the supposition that the clause in question would not probably be C07ivenienily and satisfactorily executed without such assumption ?
Again, the “ fair scope of the terms” of this clause of the Constitution has been enlarged in violation of this rule,in assuming that it conferred upon the slave owner a constitutional right to have his slave restored to him in the State from which he fled. But it is obvious from reading the clause, that it contains no covenant or guaranty to return the fugitive, but only to deliver him up in the State to which he may have fled and in which he may be found; not to return him to the State from which he may have fled. The Supreme *118Court of the United States say, “that the object of this clause was to secure to the citizens of the slave-holding States the complete right and title of owner g^p their slaves, as, property, in every State in the Union into which they might escape from the State where they were held to service or labor.” It is respectfully submitted, that such was not the object of the clause, but far from it. It was not the object of the clause to legalize slavery in every State of the Union. Such is not now the legal effect of the provision. To give it such a construction would be enlarging the construction beyond the “ fair scope of its terms.”
The court say, “ The object of this clause was, to secure to the citizens of the slaveholding States the complete right and title of ownership in their slaves, as, property, in every State of the Union into which they might escape from servitude.” “Its true design was to guard against the doctrines and principles prevalent in the non-slaveholding States, by preventing them from intermeddling with, or obstructing or abolishing the rights of the owners of slaves.”
By what rule of interpretation such a construction can be placed upon the words contained in this clause, it is difficult to conceive. The full recognition of the right of property in the slave in every State in the Union! The complete right and title of ownership in their slaves as property! It is submitted, that the recognition of the rights of the master enjoined by the clause is : (1) so far as not to dischaige the fugitive from the labor or service which may be due, claimed and established; and (2) to deliver him up on claim of the person to whom such labor or service is due, when claimed by him, and such claim is le-*119gaily established. That is all. Such is the bond; no more, no less. The seal may bind, but it cannot enlarge the scope of the bond. The full recognition of the rights of the owner in the slave, “as property,” and not ■ to obstruct those rights, would greatly enlarge the scope of this provision. The essential rights of the owner of property are, to sell or exchange it; also to use, enjoy, and control it absolutely, without hindrance or molestation. By this construction of the court, therefore, the owner of the fugitive may not only seize him in any State, but he may sell him, at auction or otherwise; he may hire him out to service for any term; he may command his immediate, as well as his prospective services, and lash him into obedience, and none of these rights may be obstructed or “intermeddled” with. Such a construction, if acquiesced in, would open up a market in every free State for fugitive slaves. Placards would be lawfully posted at every corner of the highway, and the service of the slave proposed as compensation or reward for his capture ; and such a construction would arm every slave hunter with a lash, to scourge the fugitive into immediate service, or back to bondage; and no State law or authority could interpose to prevent such outrages, for all such would operate a “ discharge pro tanto?
It is submitted that this is going a little beyond the “fair scope” of the language of the Constitution. Its fair scope and true intent do not require of the free States any recognition of the right of the owner of the fugitive in him as property. That was never-required of them, and would have been scouted, had it been proposed. The clause simply requires that the States into which the fugitive shall escape shall *120not discharge Mm from service, but deliver him up. He is recognized simply as a person owing service, not as a chattel, or as any species of property to be sold or bartered. In Virginia he may be, indeed, a chattel; but in Wisconsin he is a MAN. The laws of Virginia make him a chattel there; but the Constitution of the United States and the laws of Wisconsin regard him as a person here. Under the Constitution, the fugitive leaves the attribute of the chattel behind him in the State from which he flees, and goes forth as a PERSON. The law which makes him property in Virginia, does not go with him beyond the limits of that State. On his escape from such limits he ceases to be property, but is a person liable to be reclaimed. The person may escape, but the property cannot. The States are no more bound to recognize the fugitive slave as property, than a fugitive apprentice as property. The relation of master and servant is recognized so far, and so far only, as the obligation of service is implied from such relation. Even such obligation is not recognized as full, complete, present and operative, but as attaching to that relation in mother State. So much of the law of the State from which he fled, as required of him service to his master there, is to be regarded, and from that obligation of service, imposed by that law, the State may not discharge him. The law of Virginia which requires of the slave service to his master, is recognized as the law there, not here. We may not discharge a fugitive from the service which, by law, he owes in Virginia. But by that law he owes no service here. The master may capture him in Wisconsin. We must deliver him up to his master, on the establishment of his claim; but his master has no right to *121command Ms service in Wisconsin. He must heat him. He may take him hack to Virginia, hut he cannot command his service here. When he gets to Virginia he will owe service hy the law of that State, hut not till then. By the law of that State he owes the service, and hy that law only. That is the law of Virginia, hut not the law of Wisconsin. If the master demand service here of his fugitive, and heat him for disobedience, he is punishable hy our laws. Nor could the master, having captured the fugitive in this State, sell or hire him to another. He has just the control over him requisite to his extradition, and no more. He may relinquish that right, and so emancipate him; for such, relinquishment would operate emancipation ; hut he cannot sell and transfer his right of extradition to another. He may employ,perhaps, an agent for that purpose; though, strictly construed, the clause might he held to require the claim to he made hy the owner in 'person, to whom the service is due, and to exclude the intervention of an agent*
Such, it seems to me, is the plain meaning of the clause in question. I cannot conceive of any other. And yet, in the same case (Prigg vs. Penn.) the court say,,“the clause contains a positive and unqualified right of the owner in the slave as property, unaffected hy any State law or regulation whatsoever, because *122there is no qualification or restriction of it, to be found therein, and we have no right to insert any which is not expressed, and cannot be fairly implied. Especially are we est0ppeci from so doing when the clause puts the right to service or labor upon the same ground and to the- same extent in every other State, as in the State from which the slave escaped, and in which he was held to the service or labor. If this be so, then all the incidents to that right attach also.”
Now one incident to that fight in the State from which the slave has fled, is, that the owner may transfer it to another, and therefore no State law or regulation can prevent the exercise of that right in a free State and to the same extent to which the owner is entitled in his own State. The slave code of every State in the Union is thus engrafted upon the laws of every free State, and the latter are prohibited from all legislation on the subject, while the power of legislation, to enlarge or modify this right is in the former. To the “ same extent ” as the right of the master in the slave is given by the local law of Arkansas, is he entitled to enjoy and exercise it in Wisconsin or Massachusetts ! This is insisted upon over and over in the opinion of the court, and it is claimed that the State courts are bound by the decision. T 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 in*123stances, 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, wbat 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 re-trictive words ; nay more, it would have been a dangerous expedient, for then it would have been held5 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 prin*124ciples 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 ackno wledged, the express, the constitutional rule, that th 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 necessary to the conclusions of the court. To narrow the basis, would be to destroy the superstructure. Abridge the premises, and the conclusions scatter. Upon this ground it was absolutely necessary that the court should plant its decision. No other *125would serve to sustain it. They did so. To have done less, would have been to have done the reverse.
It may then be ashed, in all candor, if the Supreme Court of the United States, or any 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.
It cannot be necessary to refer specifically to the repeated adjudications by which the Supreme Court of the United States have declared the rules of construction of the Constitution, viz: that the federal government is one of limited powers; of powers delegated, not inherent; that it can exercise no power unless expressly granted or necessarily implied ; that the federal government was endowed with no power but such as is expressed or necessarily incident to the execution of some express power ; that all powers not delegated, expressly or by implication, or necessarily incident to some express power, were reserved to the States and to the people ; — they are known to every student of the Constitution. (See Martin vs. Hunter’s Lessees, 1 Wheat. 326 ; Story’s Com. § 1238 et seg.; 1 Kent’s Com. 388, 390 ; Gibbons vs. Ogden, Wheat. 203; 4 Wheat. 122 ; 5 Wheat. 1; 2 Dall. 386 ; 2 Wheat. 259 ; 8 Wash. C. C. Rep. 316, 322 ; cmd oases there cited) Yet the rule sought to be established by this decision is, that reservations and restrictions in behalf of the States are to be expressed, and not grants or relinquishments in behalf of the federal government; that in the absence of restriction, positive and unqualified right or power is to be inferred ; *126that because the States and the people thereof have parted with some of the attributes of their proper sovereignty, therefore, they have parted with all which they have not express]y reserved !
These are the grounds upon which the doctrine of Prigg vs. Perm, is based. They are not inferences or deductions from the doctrine, but premises without the recognition of which, not one step towards the conclusion can be taken.
But I ought not to dismiss this portion of the case without suggesting its dangerous tendency. If the free States are bound by this clause of the Constitution to recognize the full and complete rights in the owner of the fugitive slave, as ¡property, to the “ same extent” as they were recognized in the State from which he escaped, then it will soon be claimed that the free States may be made a highway for slaveholders traveling with their slaves ; a thoroughfare for internal slave traders, over which to transport their living chattels from State to State, and State sovereignty itself must succumb to the slaveholders’ authority. I do not mean to say that the case of Prigg vs. Penn, has that extent; but that such is its tendency. Perhaps it was intended by the court to restrict the application of its doctrines to the case of slaves who had escaped. Its language, however, has a much wider scope. But conceding as I do the full effect of such limitation, and how easy will it be to construe an advantage taken of a voluntary bringing of the slave into a free State, into a technical escape; so to frame affidavits as to support a constructive escape, and thus to hang not only the liberty of the citizen or inhabitant, but also the sovereign authority of the State, upon the mere affidavit of a man who, for hire, *127would engage in the service of recapturing fugitives, thus invading the territories of freedom in search of recruits to fill the ranks of slavery.
Having declared the right of the slave owner to the extent before stated in the remarks of the court quoted, the court go on to say, “ If indeed the Constitution guarantees the right, and if it requires the de livery upon the claim of the owner, (as cannot be well doubted) the natural inference certainly is, that the national government is clothed with the appropriate functions and authority to enforce it.
The simple answer to this is, that the Constitution does not guarantee the right. It guarantees no right. No power is granted in the Constitution to the federal government to enforce or guaranty any right in regard to fugitive slaves, or any other slaves. The Constitution expresses a simple inhibition on the one hand, and enjoins a simple duty on the other. The inhibition on the States, is, not to discharge the fugitive by any State law or regulation; the duty enjoined upon the State is, to deliver him up on claim, &c. &n inhibition upon the States is not a grant of power to the United States. A duty enjoined upon the States, cannot be construed into a grant of power to the United States, to do the same thing in case the States do not. The States are inhibited from passing any law impairing the obligation of contracts, but because the States are thus inhibited, it cannot be contended that the federal government may do so. So far from it, that an express power was invoked and incorporated in the instrument enabling Congress to provide for a uniform system of bankruptcy. The duty of electing senators is enjoined upon the State legislatures by the Constitution of the United States; *128!>ecai-'ise this duty is enjoined by that instrument, will it be pretended that if the States do not perform it, the United States may ? and thereby assume to †-pg pjmted States Senate the power to fill vacancies which may occur in that body ? Yet this is the doctrine of the Supreme Court of the United States in the case of Prigg vs. Pennsylvania.
The court say, in continuation of the paragraph just quoted, in illustration and enforcement of their doctrine: “ The fundamental principle, applicable to all cases of this sort, would seem to be, that where the end is required, the means are given ; and when the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any State.” Mr. Justice McLean, who concurred in the main opinion of the court, that the power of legislation was vested exclusively in Congress, and wrote a separate opinion to strengthen it, says that a positive duty is enjoined upon the States to deliver up the fugitive, and the court say that because the clause is found in the national Constitution and not in that of the States, the federal functionaries must perform it, and the State functionaries cannot; still the duty is enjoined upon the States, and when the duty is enjoined, the ability is contemplated to exist on the part of the functionaries to whom it is entrusted; nevertheless, though entrusted to the State functionaries, and the ability to perform it contemplated to exist on their part, it does not exist at all, and the States and their functionaries have no authority in the premises. Such is Prigg vs. Penn., decided pro forma in a State court, and jurisdiction assumed in the Supreme Court of the United *129States, “ to put these agitating questions forever to rest ” ,
“ The .clause is found in the national Constitution, and not in that of any State. It does not point out any State functionaries, or any State action to carry its provisions into effect. The States cannot, therefore, "be compelled to enforce them, and it might well Tbe deemed an unconstitutional exercise of the power of interpretation to insist that the States are hound to provide means to carry into effect the duties of the national government, no where delegated or entrusted to them by the Constitution.”
What inference can be legitimately drawn from the fact that the . clause is found in the national Constitution, in favor of a grant of power to the federal government, it is difficult to perceive. Many, very many clauses are found there which confer no power”, some which do, some' which restrict, and some which inhibit'its exercise. Because it is found there, and nowhere else, it does not follow that the national government shall enforce it. On the contrary, the acknowledged rule of interpretation is, that it cannot exercise any power but such as is expressly or impliedly delegated, and that where this1 is not the case, the power of execution is reserved to the States or to the people. If the clause does not point out any State functionaries, or any State action to carry its provisions into effect, neither does it point out any national functionaries, or any federal action for the same purpose ; hence, according to the rule of interpretation, before stated, if it did not point out national functionaries, or federal action, the same were reserved to the States and the people thereof. There would have been a manifest impropriety in attempting ' *130to prescribe the mode and State functionaries by which this duty that the' States voluntarily bound themselves to observe, should be executed. It would have been as gross an impeachment of their integrity and honor, as is the decision of the court in this case. It would have been .treated as the unworthiness of the suggestion had merited. But if the clause had contemplated federal action, what would have been more appropriate, than- to point out the mode by which it was to be exercised, or to designate the federal functionaries who were to execute it. Indeed, it is inconceivable, that the convention should have contemplated the execution of this clause by the federal government, and should.have prescribed no mode of execution, nor even grant any power to prescribe .one ; especially, when just before they had perceived the' necessity of such grant in regard to the faith and credit to be given to public records of the States, and made the grant accordingly.
The vice of this sort of reasoning on the part of the court, is, that it begs the very question which it assumes to prove. It is assumed, that upon the national government is imposed the duty of delivering up the fugitive; then, .because'the duty is imposed, the means of performing it necessarily exist. But the duty is not imposed upon that government; and . the members of the court who-concurred in the opinion were obliged to abandon this fundamental position, and admit that the duty is enjoined upon the States. Then, according to- the majority opinion, “ when a duty is enjoined, the ability to perform it is contemplated to exist,” a majority of the judges will be found, upon analysis, holding that the duty and the power, both rest with the States. These are in*131consistencies which, it is difficult to follow and obey, " 7 even “ to preserve the rule of judicial order stare de-oisis,” or “to maintain a dignified judicial subordination.” . *
The veiy fact, therefore, that the clause does not point out any federal functionaries, or any federal action to carry its provisions into effect, is a conclusive argument, that State functionaries, and State action, are the only constitutional means of its execution; because all agencies, powers and processes not granted to the federal government or some department thereof, are. reserved to the States and to the people. And for the court to assume, that federal authority is to be presumed in all cases when State functionaries are not pointed out, is a gross usurpation, and a flagrant violation of all settled rules of construction, and a palpable violation of the express provisions of the tenth amendment of the Constitution itself.
One more assumption on the part of the court in favor of the exclusive power of legislation by Congress, and I will dismiss this branch of the subject. The question which seems to have agitated the minds of the court was, not what is the fair construction of the clause, and the obvious mode of deriving its bene fits, but in what manner may it be possibly stretched and distorted to serve the present ends, and to suit the convenience of the slaveholding States. The rights,interests, feelings,' dignity, sovereignty, of the free States are as nothing, while the mere pecuniary interests of the slaveholder are everything. This is as absolute an impeachment of the patriotism of the South, as it is of the integrity and honor of the North. It assumes that the former value the Union at the price of an occasional runaway negro, and that the *132latter are recreant to their own solemn engagements. That the one is demanding vastly more than she bar-for; that the other is withholding that which gpe gtipulated to yield.
The court say (page 623), “In the next place,' the nature of the provision and the objects to be attained by it, require that it should be controlled by one and the same will, and act uniformly by the same system of regulations throughout the Union.” Strange, indeed! What is there in the case of a runaway slave so very peculiar, as to require him to be caught by one and the same system? What so peculiar in the master’s claim as to require it to be tried by one and the same rule in every State ? Is there anything so sacred in the relation of the master to his fugitive slave as to require the “policy, local convenience and local feelings” of every State to be subjected absolutely to its demands? The slave States did not ask this at the time of the framing and adoption of the Constitution. All they asked of the free States, was expressed by Messrs, ■ Pinkney and Butler in the clause which they presented in the national convention.' All they dreamed of asking was, that their fugitive slaves should not be discharged by operation of the emancipation laws of the free States, or those which were becoming, or about to become free ; that instead of discharging and-protecting them, they would deliver them up on claim of the rightful owner. They were perfectly willing that each State should do this in its own way. The right of the State to emancipate its slaves was acknowledged, and it was asked that this sovereign right should be restricted so far, and so far only, that its laws should not affect slaves escaping from other States, so as to discharge them from the service due *133"by the laws of the slave State, provided they were claimed by their owners, and' that if claimed, and the claim established, the State should deliver them up-This was acceded to. It was never asked that there should be provided a uniform system of recapturing fugitives ; that all of the States should submit to the same regulations, and be subjected to the same modus operandi. It was never asked that the fugitive should be returned to the master in the State from which he fled, but only that he- should 'be delivered up. Is it any greater hardship for the.slave owner to re-possess himself of his slave, in conformity with the laws of the State in which he may be found, than it is for the owner of any other species of property, who pursues it into another State ? If my horse strays, or is stolen, and taken to another State, I must resort to the laws of the State in which he is found, to try my title to him. This is no hardship. Each State provides me a remedy, though all do not provide the same remedy. And if I am so unfortunate as to meet conflicting claims in a State through which I may pass, •they must be determined according to the laws of the place where they are tried. The State is bound by the clause in. question to provide an adequate remedy to deliver up the fugitive, according to its true intent and meaning. If it do this, it is all that can rightfully be demanded.
It is a poor, grumbling argument to say, that because I must submit to the regular forms of law to establish my rights when contested, that to do so, would cost more than my claim is worth, This is the common complaint in all conflicting claims, to settle which requires the intervention of judicial forms. “ The law’s delay ” is an ancient subject of grumbling ; *134but it still remains, notwithstanding the remedial agencies proposed by Jack Cade at an early period, and by judicial argument in modern times.
p>u^ ^ is saicl5 that a trial of the claim of the master, and an adjudication in his favor, would be no protection in another State through which he might have to pass on his way to his own domicil. Well, what of it ? The clause does not require of the State delivering up, any such guaranty. Nor does it furnish any such guaranty from any source. If more had been deemed requisite, more should have been inserted in the clause. But it is submitted, that ample protection is afforded by another clause of the Constitution, and power is given by express grant to Congress, to make it effectual. It is found in the first section of the same article four. “Full, faith and credit shall be given in each State to the public acts» records, and JUDICIAL PROCEEDINGS of every other State. And the Congress may by general laws prescribe the manner in which such acts, records and judicial proceedings shall be proved, AND THE EFFECT THEREOF.” Here is full protection in every State. Give to your mode of re-possessing yourself of your fugitive, and establishing your claim to his service, the dignity of a judicial proceeding, and you are protected in every State of the Union through which you may pass.
Here, then, vanishes one of the most frightful of the arguments of inconvenience raised by the court on which to found an implied power’. All the others of the kind vanish likewise upon slight inspection. With these vanish all, for there are none other.
And herein have the slaveholding States gained vastly by the federal compact. Before the adoption *135of the Constitution, their fugitive slaves were subject to the emancipation laws of other States, and were only delivered up, or suffered to be'captured by comity. By this clause the free and emancipating States imposed an inhibition upon their sovereign power, which would preclude the discharge of a fugitive, by the operation of their laws, from the service-which he owed by the law of another State from which he had fled, and a covenant on their part to deliver him up to his owner. This was a vast acquisition on the part of the slave States, and they might well be content therewith. Had the confederation continued they would have had no such compact in their favor. Had the confederation dissolved, and no Union been formed, the flying fugitive would have been beyond the reach of the master the moment he entered a free State. Had the Union been.formed without this clause, they were as well off as before. It is therefore all gain on the side of the slave States It was conceded by the free States without an equivalent. It was not the result of compromise. It is an abuse of terms, and a perversion of the truth of history to call it so. There is not a scintilla of historic evidence that tlii clause or its subject matter, was a consideration in settling what were called the compromises between the North and South. On the contrary it was deemed by the South as so much clear gain ; as a covenant, a constitutional compact by which the tree and emancipating states had bound themselves to deliver up fugitives from service, on claim of the owner, upon the establishment of his claim,' and had forever inhibited themselves from passing any laws by which such fugitives should become free. In that light it was viewed by the mem*136"bers of tlie conventions of the Southern States called to pass upon the Constitution. So was it viewed and explained by Mr. Madison and Mr. Randolph in the conven-f¿on 0f Virginia, by Mr. Iredell, of North Carolina ; so in South Carolina, and, in every .instance in which it was mentioned, either the language used, or the context,- plainly shows, that the point gained was, that their fugitive slaves were excluded from the operation of .the emancipation laws of the Northern States, and that' this was so much clear gain.
This is the fair scope of words of the clause. With it the South were satisfied. They demanded no uniformity of remedy. They were willing to leave the mode of execution to the good faith of the States. Why then seek to enlarge the scojDe of the words ? Why make a new bargain, because the .old one may operate inconveniently ? And well might the South, in view of the tendency of the local policy of the Northern States, be content to rest upon such a compact, without demanding a uniform remedy in every State. They might well leave to the Northern States. the poor privilege of consulting their own local welfare, peace, feelings, aye, prejudices,-if you will, as to the mode of delivering up the fugitive. Their own domestic peace might require a different process from what might be required elsewhere. The tone of public sentiment, the temper .of the times, their contiguity or remoteness from slave territory, might render modifications, as to the remedy, essential to its due and peaceful execution in different States; and it mattered little what was the mode of execution, so that the remedy was adequate. It might well have been apprehended, that the States would never consent to have one or another mode forced upon them, however *137repugnant to the feelings of their people, or however dangerous to' the peace of the States, merely for the sake of uniformity! The Southern States asked no such thing. The Northern States conceded no such thing. As sovereigns they entered into- the compact with sovereigns; as sovereigns will they execute it. Not a vestige, not an implication of power to execute it is conferred upon another. An intimation of the expediency of sueh a grant would have been deemed not only an insult to the States, but a deadly encroachment upon their sovereignty, and a complete usurpation of their powers of internal police. Had the Northern States imagined, that by assenting to this clause of the Constitution, they were thereby conferring upon the federal government the power to enter their territory in pursuit of a runaway negro, and to employ the whole military and naval force of the Union for that purpose, to subject their houses to search, and to override their own laws, and municipal regulations, and that they were parting with all power to regulate the mode of procedure by which that clause was to be carried into effect; does any sane man believe that they would ever have assented to it? — or, if the Southern States had imagined such a construction would be put upon it, that they would ever have proposed it ?
I had intended to compare the several opinions delivered in this case, and to show (which it would be easy to do) that there is scarcely a point attempted to be settled by the majority opinion, which is not left unsustained by a majority of the judges, in their separate opinions. Indeed, it is haidly possible to discover a single point on which a majority agree when they speak separately, except, perhaps, *138th.es power of Congress to' legislate, and- even that is left doubtful. But these remarks have been already extended so far, that I am precluded from discussing £pe supj ect of that decision much further. It seems to me that it cannot deserve the claim to authority. set up for it.
If this case is authority at all, binding upon any court, it is only authority upon the point in judgment;, and that point was, whether the act of Pennsylvania, under which the plain tiff in error, Prigg, was indicted and convicted, was unconstitutional. The court decided that it was repugnant to the clause which has been mentioned, inasmuch as by that clause, the master may seize his fugitive in any State., and remove him, by his own act, and without process, and convey him out of the State ; and as the statute of Pennsylvania made such an act. punishable as for kidnapping, it was repugnant to the clause in question, and therefore void. It is cheerfully admitted, that all laws enacted by a State, or by Congress, which contravene the provisions of that clause, are unconstitutional and void ; and it is as much the duty of the State courts so to declare them, whether passed by the State or National legislature, as it is the duty of the United States courts ; no more, no less ; and the determination of the one according to its grade, is as much authority as the other.
This case ought not to be passed over without noticing one important fact established by the special verdict, and which seems to have been entirely overlooked in the opinion of the court. The negro woman, Margaret Morgan, escaped from the State of Maryland (where by the laws thereof she owed service, or, in other words, was a slave for life to one Margaret *139Ashman) in 1832. This Prigg was appointed agent by the said. Margaret Ashmun to “seize and arrest the said Margaret Morgan as a fugitive from labor, and to remove, take and carry her from this State (Pennsylvania) into the State of Maryland, and there to deliver her to the said Margaret Ashmun ” ; that the said Prigg, instead of confining himself to the terms of his power as agent or attorney, “ did take» remove and carry away the said negro woman Margaret Morgan, ahx> her children, out of this State (Penn.) into the State of Maryland, and did there deliver the said woman and her children into the custody of the said Margaret Ashmun.” And “ that one of the said children so taken and removed and cct/rried ■ aiuay, was horn in this State (Penn.) more THAN ome year after the said negro woman Margcwet Morgan had fled and escaped from the State of Maryland,T
It is a little singular, that though Prigg had taken and carried away this child, born in Pennsylvania more than one year after the escape of the mother, yet no mention whatever is made of the fate of that child, except that it was delivered to Margaret Ash-mun. But there is no concern for this child expressed in the opinions of the court and judges. A child born in a free State more than one year after the mother had .fled thither, could hardly have been regarded as “ an incident” to the right of the owner “ in ” the slave 'mother. Perhaps it was supposed that “ the full recognition of the rights of the owner in the slave, as property, to the same extent, and with all its incidents, as the same is recognized in the State from which she fled,” would embrace this child of Pennsylvania within the comprehensive scope of the principle sought to be established. It may be, and *140such.is the force of the language of the court heretofore quoted from page 613, that the court held (if the fate of the child entered into its consideration that, as by the law of Maryland the condition of the child follows that of the mother, so should that law pursue the escaping female, and attach toiler offspring in any State .in which they might be born, however remote from the period of escape. Such is the necessary result of the positions and arguments adopted in the case of Prigg vs. Penn. If the opinion decides anything, it decides this. The more charitable-conclusion, however, is, that this little humanity perceptible in the record, was lost sight of in the endeavor, so happily achieved, “ to put these agitating questions forever to rest.”
The entire argument of the majoi’ity opinion in this case is based upon the assumption that a duty is imposed upon the federal government to deliver up the fugitive, and therefore Congress must have the sole power to legislate the mode of its performance. Other judges, who dissented from the doctrines of the opinion, and Mr. Justice McLean, who concurred in the main principle just mentioned, but who dissented upon other grounds, abundantly refute and subvert the assumption, and show, what indeed is palpable, that the duty is enjoined, not upon the federal, but upon the State governments; thus completely overthrowing the whole fabric oi the decision, by subverting its foundation.
No duty is enjoined upon the federal government. The clause addresses itself to the States and contemplates State action. It imposes a restriction upon State legislation, inhibiting any law or regulation by which the fugitive shall be discharged; thus recogni*141zing the power of State legislation and its validity to any extent, not within the express' inhibition. •
Much stress is laid upon the fact that at an early day Congress assumed the power of legislation, in the passage of the act of 1198, thus affording contempo. raneous interpretation as an argument in favor of the power of Congress to legislate upon the subject. But the Supreme Court of the United States in this very case, determine that act to be unconstitutional, inasmuch as it requires the action of State functionaries to execute it. If unconstitutional in the mode of leg. islation, it may be equally so in regard to the rightful power of legislation. Indeed the very fact of the apparent impossibility of the national legislature, to provide for the execution of this clause of the Constitution, without violating its other provisions, ought to be sufficient to satisfy all, that the power rests with the State and not with the national functionaries, and that as the duty is enjoined upon the States, they must necessarily have the power, and the exclusive power to perform it. (See extract from the opinion of Justice McLean before quoted.) ‘ .
■ There are many other positions assumed, or remarks made in the vaviou-s opinions in this case which I would like to comment upon, but it is impossibleat this time. Enough has been said it is believed, to render it apparent, that it is not, that it cannot be authority for any court. Even did we admit that the Supreme Court of the United States is an appellate tribunal to this court, we could not hold the doc. trines and opinions of this case as binding upon our consciences, or as controlling our action.
The decisions previous to the case of Prigg vs. Pennsylvania, are admitted in almost all discussions *142weight, either on account of the discrepancy of opinion among the members of the respective courts which have chanced to touch upon the ques- or fj.om the fact that the question has not been raised in the cases adjudicated. I do not refer to them specifically, deeming it of little importance to do so. Those who are curious upon the subject will be able to satisfy themselves of the correctness of this remark by referring to the several cases which have been cited in other parts of the record of this case. None of them seem to be relied upon, nor are indeed worthy to be considered as authority, inasmuch as the main questions involved are scarcely raised, much less, carefully considered.
The cases in which the questions here raised have been brought before the courts, since the decision of the case of Prigg vs. Pennsylvania, have been determined in accordance with the doctrines of the latter, in the main, without examination or discussion. There seems to have been a great reluctance on the part of the State courts to enter upon the discussion of the subject, and a willingness to forego investigation of the principles involved, and to rest quiescently upon such authority as that case furnished. The United States courts have seemed to be content with the effort then made, and I am not aware that that case has ever been seriously reviewed. However, in the case of Moore vs. Illinois, 5 Howard, 18, the doctrines of Prigg vs. Pennsylvania seemed to press too hard upon the court, and without formally overruling the main question, viz: that the States had no power to legislate upon the subject of fugitive slaves, the court virtually overthrow the fundamental principle there established; admit and decide that the States may *143legislate a remedy in' the very case contemplated by the second section of the fourth article of the Constitution, but refer it to their power of internal police. No person who will carefully examine the doctrines and argument in the case of Prigg vs. Pennsylvania, and compare them with the facts and opinion in the case of Moore vs. Illinois, can fail to observe that the latter is utterly irreconcilable with the former, and does virtually overrule it.
I am now done with my remarks upon this case, so-often quoted, and in the argument at the bar so strenuously insisted upon as establishing a rule of judicial order and conduct — a rule which no lawyer or judge will ever esteem lightly — the rule “ stare decisis.” It seemed to be due to this court and to myself that this case should be examined. I have tried to do so fairly and respectfully. Sometimes it has been difficult, on account of the peculiar mode of reasoning adopted, and the .freedom of language, terms, and rules of construction indulged in, to maintain the solemn dignity which should be observed on approaching matters so gravo, and opinions sanctioned by such eminent names. But these names are not to me the highest objects of reverence ; the sovereignty of my State is higher than either or all; there is an authority above them all, that of the Constitution of the United States.
In an opinion like this, it would be out of place to attempt to show the baneful effects of that decision. But it would be easy to adduce facts without number, and dates unerring, indicating most unequivocally, that, if the annunciation of that decision was not the beginning of our troubles, it tended, and still does tend,'-greatly to enhance them. I speak not of its de-*144Doubtless it was patriotic and conscientious, to declare tlie law as it was believed to be. But every day’s experience ought to satisfy all, that the States never will quietly submit to be disrobed of •their sovereignty ; submit to the humiliation of having the execution of this compact forced upon them, or rather taken out of their hands; by national functionaries ; and that, too, on the avowed ground that they are so utterly wanting in integrity and good faith that it can be executed in no other way. On the contrary, if the federal government would abstain from interference, the States would adecpiately fulfill all their duties in the premises, and peace and order would be restored.
But they will never consent that a slave owner, his agent, or an officer of the United States, armed with process to arrest a fugitive from, service, is clothed with entire immunity from State authority; to commit whatever crime or outrage against the laws of the State, that their own high prerogative writ of Habeas Corpus shall be annulled, their authority defied, their officers íesisted, the process of their own courts contemned, their territory invaded, by federal force, the houses of their citizens searched, the sanctuary of their homes invaded, their streets and public places made the scene of tumultuous and armed violence, and State sovereignty succumb, paralyzed and aghast,before the process of an officer unknown to the Constitution, and irresponsible to its sanctions. At least, such shall not. become the degradation of Wisconsin, without meeting as stern remonstrance and resistance as I may be able to interpose, so long as her people impose upon me the duty of guarding their rights and liberties, and of maintaining the dignity and sovereignty of their State.
Note. — This opinion was delivered verbally, from short notes, at the same time that the other judges delivered theirs, substantially as it .here appears, and has since been written out at length and prepared for publication with the report of the case.
There would be good reason for holding that this claim must be made in person, and not by an agent. The owner, on seeing his fugitive, who had served him long and faithfully, might relent of his purpose of reducing him again to bondage. The agent would be bound by instructions, and his heart closed against the suggestions of sympathy or justice. There would be a propriety therefore in requiring that the claim to an escaped fugitive should always be made by the owner in person.