lished. The act of 1793 does not cover the whole ground. It makes no provision for the arrest of a fugitive pending a demand for his surrender, nor for the method of making arrests before or after such demand. It does not provide for the method of delivery. It refers to the "agent" of the "executive authority making such demand," but does not provide for his appointment nor for the method of delivering the fugitive to him. In these respects at least, in which the action of the State authorities is contemplated but not defined, it might be supposed that there was room for State regulation. In the case of Prigg v. Commonwealth, which involved that part of the act of 1793 relating to fugitives from service, Mr. Justice Story, in delivering the judgment of the Supreme Court that a Pennsylvania law obstructing the execution of the constitutional provision and the act of Congress was unconstitutional, expressed the opinion that the legislation of Congress on the subject was exclusive.2 This opinion was obiter, since the Pennsylvania statute imposed a penalty upon any person who by force or violence took away from the Commonwealth any negro or mulatto for the purpose of selling or disposing of them or of keeping them as slaves or servants for life, and was thus clearly in conflict with the Constitution and the act of 1793. Chief Justice Taney concurred in the judgment of the court, but dissented from what Mr. Justice Story said about the exclusive legislative power of Congress. The Constitution, said the Chief Justice, was the law of each State, and no State had the power to abrogate or alter it.

1 16 Pet. 539, 622.

2 In the case of Jack v. Martin, 12 Wend. 311, in 1834 the supreme court of New York said that the right to legislate respecting the recovery of fugitive siaves was exclusively vested in Congress. But the point really decided in the case was that the removal of a fugitive slave under the act of 1793 could not be obstructed by a writ de homine replegiando issued under the authority of a State law. In Houston v. Moore, 5 Wheaton, 1, the Supreme Court of the United States held that, although Congress had legislated on the subject of the militia, yet an act of Pennsylvania, punishing privates and officers of the militia of that State who neglected or refused to serve when called upon by the President under the act of 28th Feb., 1795 (1 St. at L. 424), and providing for the trial and punishment of such delinquents by a State court-martial, was not repugnant to the Constitution and laws of the United States.

But why might not a State protect a right of property acknowledged by its own paramount law?

"Moreover," he said, "the clause of the Constitution of which we are speaking does not purport to be a distribution of the rights of sovereignty, by which certain enumerated powers of government and legislation are exclusively confided to the United States. It does not deal with that subject. It provides merely for the rights of individual citizens of different States, and places them under the protection of the general government, in order more effectually to guard them from invasion by the States. There are other clauses in the Constitution in which other individual rights are provided for and secured in like manner; and it never has been suggested that the States could not uphold and maintain them, because they were guaranteed by the Constitution of the United States. On the contrary, it has always been held to be the duty of the States to enforce them; and the action of the Federal government has never been deemed necessary except to resist and prevent their violation."

Thompson, J., concurred in the judgment, but dissented on the question of exclusiveness of Congressional power. Daniel, J., likewise.

Wayne and McLean, JJ., concurred in the opinion of Mr. Justice Story. All the judges agreed that the right to reclaim the slave being given by the Constitution, such reclamation directly by the master or his agent could not be inhibited and punished by a State law. Baldwin, J., thought the legislation of Congress unconstitutional. He held that such legislation was superfluous and obstructive of the provision which gave the owners of fugitive slaves all the right of removal they could have; but he concurred in the opinion that if legislation was required, the exclusive power was in Congress.

The subject of the power of the States to legislate in reference to fugitive slaves was subsequently before the Supreme Court in the case of Moore v. Illinois. The plaintiff in error was convicted under a statute of Illinois for "harboring and secreting a negro slave." The validity of this act

VOL. II. -4

1 14 How. 21.

being called in question, the Supreme Court of the United States held that the statute was not in conflict with the Constitution, or with any law of the United States, as the same act might be an offence against the law of a State and also against a law of the United States. Grier, J., delivered the opinion of the court; McLean, J., dissented. Grier, J., in the course of his opinion, referring to the case of Prigg v. Commonwealth of Pennsylvania, said:

"The following questions were presented by the case and decided by the court: 1. That under and in virtue of the Constitution of the United States, the owner of a slave is clothed with entire authority, in every State in the Union, to seize and recapture his slave, wherever he can do it without illegal violence or a breach of the peace. 2. That the government is clothed with appropriate authority and functions to enforce the delivery, on claim of the owner, and has properly exercised it in the act of Congress of 12th February, 1793. 3. That any State law or regulation which interrupts, impedes, limits, embarrasses, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service, is void. We have in this case assumed the correctness of these doctrines; and it will be found that the grounds on which this case is decided were fully recognized in that. 'We entertain,' say the court (page 625), 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 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 Illinois, upon which this indictment is founded, is constitutional, and therefore affirm the judgment."

Mr. Justice McLean took the ground that the matter was within the exclusive legislative power of Congress, and that Congress having legislated on the subject, the States were precluded from doing so. The judgment of the court in

Moore v. Illinois confined the decision in the case of Prigg v. Commonwealth to the point actually involved in it, and recognized the power of the States to pass laws in aid of the act of Congress.

§ 543. Decisions upon Specific State Enactments. The power of the States to adopt legislation auxiliary to the act of Congress respecting fugitives from justice, was recognized by Judge Speer in In re Roberts, referring to §§ 54-58 of the Code of Georgia on the subject. The decisions of the State courts uniformly sustain the power of the States to adopt such legislation. In Commonwealth v. Tacey,2 in 1843, the supreme court of Massachusetts, Shaw, C. J., held that § 8, c. 142, of the Revised Statutes of that State, which authorized any court or magistrate, on complaint against any person found in the State, charged with an offence committed in another State, and liable by the Constitution and laws of the United States to be delivered over, to issue a warrant and cause such persons to be held for examination, and imprisoned or bailed for a limited time, being in aid of the constitutional provision and not repugnant either to it or to the legislation of Congress, was valid. In Commonwealth v. Hall, the same court held that the provision of the Massachusetts law authorizing the governor to issue his warrant for the apprehension of the fugitive was valid. In Ex parte Butler, the court of common pleas of Luzerne County, Pennsylvania, held that the statute of that State of 1878, relative to fugitives from justice, was constitutional, except so far as the second section limited the rights of the accused to the mere question of identity when brought before a judge of a court of record on habeas corpus. In the Matter of Heyward.5 in 1848, and the Matter of Leland, in 1869, the superior court of the city of New York treated the provisions of the New York statute of May 6, 1839, authorizing a magistrate upon complaint on oath to issue a warrant for the arrest of a fugitive from justice, as a constitutional en

1 24 Fed. Rep. 132.

8 75 Mass. 262.

1 Sandf. 701.

25 Met. 536.

4 18 Alb. L. J. 369.
6 7 Abb. Pr. (N. s.) 64.

actment. In the Matter of Briscoe, however, the court held that a warrant of surrender issued by the governor in conformity with the act of Congress was valid, though certain judicial proceedings provided by the statute of 1839 had not been instituted. In In re Mohr,2 in 1883, the supreme court of Alabama held that the provisions of the law of that State requiring proof that the person charged is a fugitive from justice was constitutional. It has been decided in California, in several cases, that the statute of that State providing for the arrest of a fugitive in anticipation of a requisition is valid. In Knowlton's Case, the superior court of Denver, Colorado, held that it was competent for the States to adopt legislation granting surrender on more liberal terms than those defined in the act of Congress. In Kurtz v. State, in 1886, the supreme court of Florida held that the statute of that State of February 17, 1881, providing for the arrest and detention of fugitives from justice, was not in conflict with the Constitution and laws of the United States. The court referred with disapproval to the dictum of Mr. Justice Story in Prigg v. Commonwealth. In Robinson v. Flanders, the supreme court of Indiana sustained the validity of the statute of that State, requiring a fugitive arrested on a warrant of the governor to be brought before the nearest judge of a circuit court of the State for identification. It has been held in Iowa, in State v. Hufford, that the statutory requirement in that State, that in arresting and rendering up a fugitive thereunder it shall be made to appear that he is

1 51 How. Pr. 422.

2 73 Ala. 503. See also Jackson's case, 2 Flip. 183.

8 Ex parte White, 49 Cal. 433; Ex parte Cubreth, Id. 435; Ex parte Rosenblatt, 51 Id. 385.

45 Crim. L. Mag. 250.

5 22 Fla. 36.

6 29 Ind. 10. In Coffman v. Keightley, 24 Ind. 509, the supreme court of Indiana, May Term, 1865, it was held that an act of that State, of March 3, 1865, which legalizes appropriations made by county boards and municipal authorities for bounties to volunteers, was not in conflict with the law or authority of the United States, or in conflict with the constitutional war-making power of the national government.

7 28 Iowa, 391.