delivered up on the claim. By whom to be delivered up? In what mode to be delivered up? How, if a refusal takes place, is the right of delivery to be enforced? Upon what proofs? What shall be the evidence of a rightful recaption or delivery? When and under what circumstances shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tribunals or otherwise, while the slave, in possession of the owner, is in transitu to the State from which he fled?

These, and many other questions, will readily occur upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. . . .

Congress has taken this very view of the power and duty of the national government. . . . The result of their deliberations, was the passage of the Act of the 12th of February, 1793 (ch. 51, 7), which, after having, in the first and second sections, provided for the case of fugitives from justice by a demand to be made of the delivery through the executive authority of the State where they are found, proceeds, in the third section, to provide, that when a person held to labor or service in any of the United States shall escape into any other of the States or territories, the person to whom such labor or service may be due, his agent or attorney, is hereby empowered to seize or arrest such fugitive from labor, and take him or her before any judge of the circuit or district courts of the United States, residing or being within the State, or before any magistrate of a county, city, or town corporate, wherein such seizure or arrest shall be made; and upon proof to the satisfaction of such judge or magistrate, either by oral evidence or affidavit, &c., that the person so seized or arrested, doth, under the laws of the State or territory from which he or she fled, owe service or labor to the person claiming him or her, it shall be the duty of such judge or magistrate to give a certificate thereof to such claimant, his agent or attorney, which shall be sufficient warrant for removing the said fugitive from labor to the State

or territory from which he or she fled. The fourth section provides a penalty against any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labor, or rescue such fugitive from the claimant, or his agent, or attorney, when so arrested, or who shall harbor or conceal such fugitive after notice that he is such; and it also saves to the person claiming such labor or service his right of action for or on account of such injuries.

In a general sense, this act may be truly said to cover the whole ground of the constitution, both as to fugitives from justice, and fugitive slaves; that is, it covers both the subjects in its enactments; not because it exhausts the remedies which may be applied by Congress to enforce the rights, if the provisions of the act shall in practice be found not to attain the object of the constitution; but because it points out fully all the modes of attaining those objects, which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the constitution.

We hold the act to be clearly constitutional in all its leading provisions, and, indeed, with the exception of that part which confers authority upon State magistrates, to be free from reasonable doubt and difficulty upon the grounds already stated. As to the authority so conferred upon State magistrates, while a difference of opinion has existed, and may exist still on the point, in different States, whether State magistrates are bound to act under it, none is entertained by this court, that State magistrates may, if they choose, exercise that authority, unless prohibited by State legislation.

The remaining question is, whether the power of legislation upon this subject is exclusive in the national government, or concurrent in the States, until it is exercised by Congress. In our opinion it is exclusive; and we shall now proceed briefly to state our reasons for that opinion. The doctrine stated by this court in Sturgis v. Crowninshield (4 Wheat. Rep. 122, 193) contains the true, although not the sole rule or consideration, which is applicable to this particular subject. "Wherever,"

said Mr. Chief Justice Marshall, in delivering the opinion of the court, "the terms in which a power is granted to Congress, or the nature of the power require, that it should be exercised exclusively by Congress, the subject is as completely taken from the State Legislatures as if they had been forbidden to act." The nature of the power and the true objects to be attained by it, are then as important to be weighed, in considering the question of its exclusiveness, as the words in which it is granted.

In the first place, it is material to state (what has been already incidentally hinted at) that the right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever State of the Union they may be found, and of course the corresponding power of Congress to use the appropriate means to enforce the right and duty, derive their whole validity and obligation exclusively from the constitution of the United States, and are there, for the first time, recognized and established in that peculiar character. . . . The natural inference deducible from this consideration certainly is, in the absence of any positive delegation of power to the State Legislatures, that it belongs to the legislative department of the national government, to which it owes its origin and establishment. . . .

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. If, then, the States have a right, in the absence of legislation by Congress, to act upon the subject, each State is at liberty to prescribe just such regulations as suit its own policy, local convenience, and local feelings. . . .

It is scarcely conceivable that the slaveholding States would have been satisfied with leaving to the legislation of the nonslaveholding States a power of regulation, in the absence of that of Congress, which would or might practically amount to a power to destroy the rights of the owner. If the argument, therefore, of a concurrent power in the States to act upon the subject matter in the absence of legislation by Congress be well

founded; then, if Congress had never acted at all, or if the act of Congress should be repealed without providing a substitute, there would be a resulting authority in each of the States to regulate the whole subject at its pleasure, and to dole out its own remedial justice, or withhold it at its pleasure and according to its own views of policy and expediency. Surely such a state of things never could have been intended, under such a solemn guaranty of right and duty. . . .

We entertain no doubt whatsoever that the States, in virtue of their general police power, possess full jurisdiction to arrest and restrain runaway slaves, and remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. . . . . But such regulations can never be permitted to interfere with or to obstruct the just rights of the owner to reclaim his slave, derived from the constitution of the United States, or with the remedies prescribed by Congress to aid and enforce the same.

Upon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded, is unconstitutional and void. . . .

133. Report of the Legislature of Virginia, 1849.1

The South is wholly without the benefit of that solemn constitutional guaranty which was so sacredly pledged to it at the formation of this Union. Our condition is precisely in effect, that which it was under the articles of the old confederation. No citizen of the South can pass the frontier of a nonslaveholding state and there exercise his undoubted constitutional right of seizing his fugitive slave, with a view to take him before a judicial officer and there prove his right of ownership, without imminent danger of being prosecuted criminally as a kidnapper, or being sued in a civil action for false imprisonment-imprisoned himself for want of bail, and subjected in his defence to an expense exceeding the whole value of the property claimed, or finally of being mobbed or being 1 Acts of Virginia, 1849-50, 240–54 passim.

put to death in a street fight by insane fanatics or brutal ruffians.

...

. . . The legislation to be found upon this subject, on the statute books of the non-slaveholding states, may be divided into two classes. The first of which would embrace the legislation of those states, which, professing a seeming respect for the obligations of the constitution, do, under the pretext of conforming to its requisitions, subject the slave owner to conditions utterly incompatible with the recovery of his slaves. . . .

Second, The laws of those states which affect no concealment of their hatred to Southern institutions, nor of their utter and open contempt and defiance of the obligations of the federal compact.

Of this class, which is now indeed the prevailing legislation of almost the whole non-slaveholding states, an act passed by the general assembly of the state of Vermont, on the 1st day of November 1843, may be cited as a fair illustration. It is in these words:

"An Act for the protection of Personal Liberty.

"It is hereby enacted by the general assembly of the state of Vermont, as follows:

"Sec. 1. No court of record in this state, nor any judge thereof, no justice of the peace nor other magistrate, acting under the authority of this state, shall hereafter take cognizance of, or grant any certificate, warrant or other process, in any case arising under section three of an act of congress, passed February twelfth, seventeen hundred and ninety-three, entitled 'An act respecting fugitives from justice, and persons escaping from the service of their masters,' to any person claiming any other person as a fugitive slave in this state.

"Sec. 2. No sheriff, deputy sheriff, high bailiff, constable, jailor, or other officer or citizen of this state, shall hereafter seize, arrest or detain, or aid in the seizure, arrest or detention, or imprisonment in any jail or other building belonging to this state, or to any county, town, city or person therein, of any person for the reason that he is or may be claimed as a fugitive slave.