3 ot,- c r13 
 
 AN EXAMINATION 
 
 OF THE 
 
 CONSTITUTIONALITY 
 
 OF THE 
 
 ACT OF CONGRESS, 
 
 PASSED IN 1793, 
 
 RESPECTING 
 
 FUGITIVES FROM JUSTICE. 
 
 SUPERIOR COURT OF CINCINNATI. 
 
 OCTOBER TERM, 1851. 
 
 Ex parte WILLIAM CIIILDS. 
 HABEAS CORPUS. 
 
 This was a writ of liabeas corpus 
 directed to the Sheriff of Hamilton 
 County, and issued upon the affidavit 
 of William Childs, that he was un¬ 
 lawfully restrained of his liberty by 
 Edward M. Wise and John Zell. In 
 obedience to the command of the writ, 
 Wise and Zell disclosed the cause of 
 their detention of Childs, claiming to 
 hold him as a fugitive from the jus¬ 
 tice of the State of Maryland. Of the 
 return made by them, and the testi¬ 
 mony, the following may be consider¬ 
 ed a fair abstract: 
 
 Childs is a citizen of Ohio, a mem¬ 
 ber of theffirm of J. Childs & Bros’. In 
 July, 1850, he proceeded to Baltimore, 
 and there succeeded, by representing 
 his firm as having a capital of eighty 
 six thousand dollars invested in their 
 business, in obtaining goods from 
 Loney, Townsend & Loney, of that 
 city, on a credit of eight months, to 
 the amount of about four thousand 
 dollars. Having made all the pur¬ 
 chases he wished in Baltimore, he 
 went to New York City, made other 
 purchases, and then returned leisurely 
 homewards. In September, 1850, the 
 firm of J. Childs A Bros’ failed fora 
 
 very large amount, and now propose 
 to pay not over forty cents on the dol¬ 
 lar. Various letters after this passed 
 from time to time between the parties; 
 all those written by Loney, Townsend 
 & Loney containing assurances of their 
 continued confidence in the other firm, 
 notwithstanding the failure. 
 
 So stood matters on the 20th of 
 September, 1851, when Mr. Town¬ 
 send, of the Baltimore firm, went be¬ 
 fore a magistrate in Baltimore, and 
 made an affidavit, charging Childs 
 with having obtained these goods up¬ 
 on false pretences. A requisition was 
 obtained from the Governor of Mary¬ 
 land on the Governor of Ohio, and 
 Wise and Zell were deputed by the 
 former to receive the prisoner. They 
 obtained from Gov. Wood a warrant 
 directed to “the Sheriff of Hamilton 
 County,” commanding him to arrest 
 Childs and deliver him to them for 
 transportation to Maryland. Armed 
 with this warrant, they came to Cin¬ 
 cinnati accompanied by Mr. 1L S. 
 Loney, and procured the services of 
 one Dalzell, who represented himself 
 to be a constable, and who procured 
 what he claimed to be an authority 
 
2 
 
 from the Sheriff to make the arrest. 
 
 Mr. Loney then sent a note request¬ 
 ing Childs to call on him at the Bur¬ 
 net House, as he was there sick. Childs 
 did so, and found Mr. Loney perfectly 
 well. Loney then told him that the 
 officers were in an adjacent room, and 
 unless the debt was paid in full he 
 must go to Maryland; but that if he 
 would pay, the prosecution should be 
 dropped. Childs declined, saying that 
 he could make no preferences among 
 his creditors; whereupon Loney knock¬ 
 ed on the partition wall and Dalzell, 
 Zell and Wise came in, and the arrest 
 was made. 
 
 A habeas corpus was at once issued 
 by Judge Key, of the Commercial 
 Court, and upon it Chi ds was dis-' 
 charged on the ground of a want of 
 power in Dalzell to act as the Sheriff’s 
 deputy. Immediately after this decis¬ 
 ion, the Sheriff arrested Childs under i 
 the warrant. A second writ of habeas 
 corpus was then issued by the same 
 Judge, which resulted after an elabo- 
 
 O t 
 
 rate argument, in an able decision re- 
 manding Childs to the custody of the! 
 Sheriff. The Sheriff then delivered 
 him to Zell and Wise, and at this stage 
 of the proceedings, the present writ 
 was issued. 
 
 Several days were occupied in the 
 argument of the case by Messrs. W. 
 Y. Gholson, Caleb B. Smith, and S. 
 P. Chase, for the apjdicant; and 
 Messrs. T. C. Ware, R. D. Handy, 
 and A. Taft, for Zell and Wise. 
 
 After some days’ consideration, 
 JUDGE HOADLY pronounced his 
 opinion as follows: 
 
 As it is claimed that this Court is 
 concluded by the decision of the Com¬ 
 mercial Court upon every question 
 which might have been presented up¬ 
 on the return and testimony in the 
 case in that Court, it becomes neces¬ 
 sary tirst to examine the doctrine of 
 
 V 
 
 res judicata. Does it apply to pro¬ 
 ceedings in cases of this kind? 
 
 That it does not, has been decided 
 by the Court ot Exchequer, in Eng¬ 
 land. That Court, Baron Parke pro¬ 
 nouncing the opinion, held that a pris¬ 
 oner has a right to the opinion of eve 
 ry one of the Courts upon the legali¬ 
 ty of his detention. 
 
 Ex parte Partington,\2> Meeson d Weis - 
 by, 678. 
 
 So, too, in Pennsylvania, the rule 
 has been declared to be, that it is a 
 question of expediency whether the 
 Court will grant the second writ; but 
 that they are not concluded from so 
 doing. 
 
 O 
 
 Ex parte Lawrence , 5 Binney, 304. 
 
 Commonwealth vs. Hambright, 4 Sera, 
 d R. 149. 
 
 And in Vermont, the Supreme Court 
 having refused to discharge one Holmes 
 afterwards issued another writ, reheard 
 the case, and discharged him. 
 
 Holmes vs. Jennison , et al, 14 Peters, 
 540, and note. 
 
 George Holmes, ex parte, 12 Vermont , 
 
 631. 
 
 And that the practice has been such 
 in Ohio, is shown by a similar decis¬ 
 ion made by Judge Johnson, in this 
 Court, in the case of Ball vs. Hand, in 
 1847. 
 
 The principle which applies here is 
 the same that controls all cases of 
 summary proceedings. The judgment 
 is final, but not conclusive beyond the 
 case in which it is pronounced. (See 
 opinion of Chief Justice Taney, 14 
 Peters , 561.) And in actions of eject¬ 
 ment. which only regard possession, 
 the rule is the same. 
 
 The only case to the contrary is that 
 of Mercein vs. The People, 25 Wend , 
 64. where the Court for the correction 
 of errors in New York, reversing the 
 judgment of the Supreme Cjurt. pro¬ 
 nounced the principle of res judicata 
 applicable to controversies between 
 parents for the custody of their chil - 
 dren. That this decision, though 
 obeyed, did not command the assent 
 of the Supreme Court appears from 
 their decision in the subsequent case 
 of The People vs. Mercein, 3 Hill, 
 399. 
 
 And although the proceedings there 
 are under a habeas corpus, yet they 
 rather resemble ordinary controversies 
 
 w 
 
 in their character, being between two 
 parties litigant for the custody of a 
 child. Even under such circumstan¬ 
 ces though. Judge Johnson, in the 
 case referred to. held that the rule did 
 not apply in Ohio. 
 
Under the act of Ohio, the reasons 
 which are urged in favor of the ap¬ 
 plication of the rule of res judicata to 
 proceedings of this kind, do not seem 
 to apply as forcibly as they would else¬ 
 where. The duty of allowing the writ, 
 upon a proper affidavit being present¬ 
 ed, is peremptory. The party holding 
 the custody must set out the cause ot 
 detention. The Court mustexamine in¬ 
 to the cause, and discharge or remand, 
 according* as the same is legal or ille- 
 gal. No room is given for the exer¬ 
 cise of discretion. And to make the 
 case stronger against the application 
 of the rule, the Legislature have pro¬ 
 vided that there shall be no second ar¬ 
 rest for the same cause after a dis¬ 
 charge, thus admitting the rule expres- 
 sio unius est exclusio alt.erius, and rais¬ 
 ing the presumption that had they in¬ 
 tended that the party remanded should 
 not have a second investigation, they 
 would have so expressed themselves. 
 
 That the rule of res judicata does 
 not apply to proceedings of this kind, 
 may then be taken as the law of this 
 case. 
 
 The first and most important propo¬ 
 sition presented, and upon which the 
 prisoner asks his discharge, consists in 
 a denial of the constitutionality of the 
 Act of 1793, under the first section of 
 which his extradition is sought. 
 
 It would be idle for me to attempt 
 to express my sense of the weight of 
 the responsibility which devolves upon 
 me in deciding this question. I am 
 called upon to construe the Constitu¬ 
 tion of the United States; to define the 
 province of the highest court in the 
 land, and the extant to which its 
 decisions carry me, and bind me con¬ 
 trary to my own judgment carefully 
 made up, and to examine my duty in 
 the light of my oath to support that 
 Constitution. From that responsibil¬ 
 ity, however, in the hope to contribute 
 something towards a final and correct 
 decision of the proposition in ques¬ 
 tion, I do not shrink. 
 
 The first and most obvious observa¬ 
 tion is, that all agreements for the re¬ 
 turn of fugitives from justice, are, 
 in their nature and essential character, 
 treaties. No nation is bound to de¬ 
 liver fugitives. The instance of Kos¬ 
 suth, is a recent illustration, which 
 
 suggests itself at once. Only from 
 comity, will a sovereign State, in case 
 of high crimes, deliver up to another 
 State refugees from the latter. And, 
 at the time the Articles of Confedera- 
 tion were adopted, the several States, 
 being sovereign and independent, were 
 bound by nothing but comity, to effect 
 extraditions of this character. 
 
 So situated, in July, 177A the States 
 adopted those Articles; and in them 
 we find the following stipulations, 
 composing the fourth Article. 
 
 ARTICLE IV. The better to secure and 
 perpetuate mutual friendship and inter¬ 
 course among the people of the different 
 States in this Union, the free inhabitants of 
 each of these States, paupers, vagabonds 
 and fugitives from justice excepted, shall be 
 entitled to all privileges and immunities of 
 free citizens in the several States; and the 
 people of each State shall have free ingress 
 and regress to and from any other State, and 
 shall enjoy therein all the privileges of 
 trade and commerce, subject to the same 
 duties, impositions and restrictions, as 
 the inhabitants thereof, respectively, provi¬ 
 ded that such restriction shall not extend so 
 far as to prevent the removal of property 
 imported into any State, to any other 
 State, of which the owner is an inhabitant; 
 provided also that no imposition, duties or re - 
 strictions shall be laid by any State, on the 
 property of the U. States, or either of them. 
 
 If any person guilty of, or charged with 
 treason, felony, or other high misdemeanor 
 in any State, shall flee from justice, and be 
 found in any of the United States, he shall 
 upon demand of the Governor or Executive 
 power of the State from which he fled, be 
 delivered up, and be removed to the State 
 having jurisdiction of his offence. 
 
 Full faith and credit shall be given in 
 each of these States, to the records, acts, 
 and judicial proceedings of the courts and 
 magistrates of every other State. 
 
 Thus, and in connexion with the 
 other clauses quoted, the provision in 
 question was first agreed upon by the 
 several States; and, as in its nature, it 
 is a treaty or compact, so it remained 
 in the Articles of Confederation, for no 
 power was given to the Congress to 
 legislate it into operation. True, in 
 case of a dispute between the States, 
 on this and every other subject, they 
 might arrange a sort of arbitration un¬ 
 der the 9th Article, but they possessed 
 no power to enforce this provision, and 
 it is a historical fact, that the power 
 was never claimed to exist. 
 
 Has that power which was wanting 
 to the Congress of the Confederation, 
 been granted to the Congress of the 
 
I 
 
 Constitution? If so, in wliat part of 
 that instrument is this grant of power? 
 
 It is adopted from the Articles of 
 Confederation with a slight change 
 
 o o 
 
 of language, thus : 
 
 O O 
 
 “A person charged in any State, with 
 treason, felony, or any other crime, who 
 shall flee from justice and be found in 
 another State, shall, on demand of the Ex¬ 
 ecutive authority of the State from which 
 he fled, be delivered up, to be removed to 
 the State having jurisdiction of the crime.” 
 
 It stands in the second section of 
 Article 4, the first clause of which pro¬ 
 vides that 
 
 “Citizens of each State shall be entitled 
 to all the privileges and immunities of cit¬ 
 izens in the several States.” 
 
 The third and last clause provides for 
 the extradition of fugitives from labor, 
 while this stands between them. Why 
 were these three provisions thrown into 
 one section? Was it not, because be¬ 
 ing articles of compact, they naturally 
 associate together? 
 
 But he who compares the Articles of 
 Confederation with the Constitution, is 
 at once struck with another fact.— 
 What has become of the last clause of 
 the 4th Article of Confederation, which 
 theroimmediately succeeded the clause 
 in question? Where, and how changed 
 do we find it in the Constitution? The 
 answer is to be found by reading sec¬ 
 tion 1, of the 4th Article of the Consti¬ 
 tution. 
 
 “Full faith and credit shall be given in 
 each State to the public acts, records and ju¬ 
 dicial proceedings of every other State.— 
 And the Congress may, by general laws, pre¬ 
 scribe the manner in which such acts, records 
 and proceedings shall be proved, and the effect 
 thereof” 
 
 Now, why this addition, if without 
 it the power in Congress to legislate 
 is implied ? It was not affixed, we 
 may conclude, by men so able as those 
 who framed this instrument, without 
 just cause, and the result is—we can¬ 
 not avoid it—that, in their opinion, 
 without this specific grant of power, 
 Congress would have been powerless 
 in this matter. 
 
 And why is this last cited Section 
 removed from the juxtaposition in 
 which it stood in the Articles of Con¬ 
 federation, and thus made a Section 
 by itself? And those other provi¬ 
 sions, its neighbors for nine long years 
 of the Confederation, thrown together 
 
 as a separate section ? They are alike 
 in their nature, kindred subjects, and 
 even in the Constitution, form sections 
 of the same Article. Why, unless 
 for the reason that inasmuch as to one, 
 which was an article of compact be¬ 
 fore, a legislative power in Congress 
 has been added, it is properly separat¬ 
 ed from the others. The former is 
 now’ no longer a mere compact be¬ 
 tween States, it includes a grant of 
 pow’er to the United States—the latter 
 remain as they were. 
 
 And this view is strengthened by the 
 fact that the 3d Section of this Arti¬ 
 cle contains the grant of two pow r ers 
 to Congress, viz : to admit new’ States, 
 and to regulate and dispose of the 
 Territory of the United States. And 
 the 4th Section enjoins a duty upon 
 the United States to guarantee to each 
 State a republican form of govern¬ 
 ment, and protect each against inva¬ 
 sion. Why this separation ? If there 
 is a power in Congress to legislate for 
 the extradition of fugitives, <fec., why 
 not unite Sections 2 and 3—if a duty 
 is enjoined upon Congress, or the 
 National Government, to supervise this 
 extradition, w 7 hy are not Sections 2 
 and 4 joined together ? 
 
 The inevitable conclusion is, that 
 each of these Sections differ from the 
 others. The first contains what was 
 originally a compact, and still retains 
 that character, with a clause, howe¬ 
 ver, giving power to Congress to pro¬ 
 vide for the manner of its execution. 
 The second contains provisions which 
 are mere compacts :—were so in the 
 instrument from w’hich they were ta¬ 
 ken, and are substantially unchanged 
 in letter, or spirit, depending for their 
 execution upon the good faith of the 
 States, unless from the fact that the 
 Constitution is the supreme law of the 
 land, as well as a compact between 
 sovereignties, they have acquired a 
 self-executing quality. The third is 
 a mere grant of power to Congress, 
 and the fourth enjoins upon the Gen¬ 
 eral Government a positive duty. 
 
 It now becomes proper in the train 
 of argument, to renew a suggestion 
 made a short time since. This extra¬ 
 dition clause gave no legislative power 
 to the Congress of the Confederation 
 —it is unchanged substantially in the 
 
5 
 
 Constitution—whence then does our National Government, or any depart- 
 present Congress derive its claim of ment or officer thereof. The demand 
 power ? is to be made by the State whence the 
 
 The tenth Article of the amendment flight took place, and the natural con¬ 
 clusion is,though the particular officer 
 is not pointed out, that it is to be upon 
 the State where he has taken refuge. 
 No governmental action is called for 
 whatever. No power then to legislate 
 it into execution, can be implied in 
 
 to the Constitution provides that 
 
 »> 
 
 “ The powers not delegated to the United 
 States, Ac. are reserved to the States respec¬ 
 tively, or to the people.” 
 
 And to understand the force and 
 effect of these amendments, it may be 
 well to recur to the preamble of the Congress, 
 resolution of the Congress of 1789, Judging this clause, then, by its 
 wdiich submitted them for adoption to history, its position in the Constitu- 
 the States. It is this : 
 
 “ The Convention of a number of the 
 States, having at the time of their adopting 
 the Constitution, expressed a desire, in or¬ 
 der to prevent misconstruction, or abuse of 
 its powers, that further declaratory and re¬ 
 strictive clauses should be added : And as 
 extending the ground of public confidence 
 in the Government, will best insure the bene¬ 
 ficent ends of its institution; Resolved,” Ac. 
 
 tion, the history and position of other 
 provisions, the specific grants of power 
 to Congress, and the general grant 
 of implied power, there cannot be a 
 doubt, that in leoislatino- it into ex- 
 ecution, Congress has exceeded its 
 
 7 O 
 
 proper powers. 
 
 What are the decisions of the high¬ 
 est tribunal in the land, the Supreme 
 The clause in question delegates no Court of the United States, upon the 
 power in terms, and in its nature, it is clause in question, and how far do 
 
 a matter of State duty. Such it was 
 considered for years before the Con¬ 
 stitution was formed. How is this 
 incident annexed ? 
 
 The first section of the first Article 
 of the Constitution provides that “All 
 legislative power herein granted, shall 
 be vested in a Congress,” &c. The 
 eighth section commences thus. “The 
 Congress shall have power:—to lay 
 andcollecttaxes,&c.,&c., <fcc., through 
 a long list of specifically granted pow¬ 
 ers, closing with this general clause: 
 
 " To make all laws which shall be neces¬ 
 sary and proper for carrying into execution 
 the foregoing powers, and all other powers 
 vested by this Constitution in the Govern¬ 
 ment of the United States, or in any depart¬ 
 ment or officer thereof.” 
 
 they bind this Court to withhold ac¬ 
 tion upon an opinion, which seems to 
 be as well sustained as the one just 
 expressed ? 
 
 The only cases decided by that Court 
 upon the subject of extradition, regard 
 the second and third sections of the 
 act of 1793, and not the one in ques¬ 
 tion at all. The Supreme Court have 
 never decided that Conoress has the 
 constitutional power to legislate for the 
 extradition of fugitives from justice. 
 But in two cases, they have affirmed 
 the constitutionality of legislation by 
 Congress upon the subject of fugitives 
 from labor. And it becomes neces¬ 
 sary, therefore, now to examine those 
 
 decisions, and ascertain how far they 
 
 . bear upon the questions involved in 
 
 And this is the extent of the im- j this case. 
 
 plied powers of 
 
 Congress. 
 
 There The first is the celebrated case of 
 
 must be a power vested in the General Prigg vs. Pennsylvania, 16 Peters , 
 
 Government, or in some department 
 or officer thereof, and then Congress 
 may pass all laws necessary and pro¬ 
 per to carry it, as well as the specific 
 powers given in this Section, into ex¬ 
 ecution. 
 
 539. The State of Pennsylvania had 
 passed a law, among the provisions of 
 which was one against kidnapping. 
 Prigg was a slaveholder, residing in 
 Maryland ; slaves had escaped from 
 . , him and taken refuge in Pennsylva- 
 
 JNow, in the extradition clause, no nia, whereupon, he came into that 
 power is given to the General Govern- State, seized the fugitives, and re- 
 ment, or any department or officer turned with them to his residence, 
 thereof. IS one tv as under the Con- And the question was whether the act 
 federation, and the provision was then of Pennsylvania, which proposed to 
 the same. No duty is imposed on the punish him for this as for kidnapping, 
 
6 
 
 was constitutional. The Supreme Court 
 decided that without legislation or even 
 process of law, the master had the 
 right of recaption, the Constitution, so 
 to speak, executing itself, and that any 
 law which interfered with this right, 
 violated the Constitution. This was 
 the point before the Court; all their 
 remarks bearing upon it were proper 
 and legitimate, and all their remarks 
 beyond it are simply obiter dicta. 
 The Court were to consider an act of 
 Pennsylvania, not ol Congress : they 
 were to say whether the former was 
 in violation of the Constitution, not 
 whether the latter was agreeable to it. 
 
 The case of Jones vs. Vanzandt, 
 5 Howard, 215, in which the point 
 did arise for decision, shows that 
 the Court made no new examination. 
 Judge Woodbury contents himself with 
 saying, that since the decision in Prigg 
 vs. Pennsylvania, the question has been 
 settled. It is evident that the atten¬ 
 tion of the Court was not directed to 
 the obiter character of that decision, 
 and under the impression that there 
 had been an adjudication binding as 
 a precedent, they not only declined to 
 disturb but even to examine it. 
 
 Under these circumstances, even 
 laying aside the objection that the Su¬ 
 preme Court have no legislative power, 
 no jurisdiction beyond “cases” com¬ 
 ing before them, and therefore no 
 power absolutely to bind inferior courts, 
 except in those “cases,” it may seri¬ 
 ously le asked whether the constitu¬ 
 tionality of legislation by Congress as 
 to the fugitive slave clause even can 
 be considered as settled in the Su¬ 
 preme Court in favor of the legislation. 
 There has been an obiter dictum , and 
 a decision without examination, upon 
 the authority of this obiter dictum. It 
 seems to be an appropriate case for a 
 careful re-examination, and an elabo¬ 
 rate decision by that court. 
 
 If such is the case as to the fugitive 
 servant, then a fortiori is it as to the 
 fugitive criminal clause. And, at 
 all events, these decisions only bind 
 courts examining the latter clause so 
 far as their reasons and arguments 
 apply to it. 
 
 Following this rule, which all will 
 admit as satisfactory, let us examine 
 the Prigg decision: one by one let the 
 
 grounds upon which it is founded pass 
 before us, that we may see how far they 
 
 : apply to the clause in question. 
 
 And, in doing this, this court is not 
 wanting in respect for that decision— 
 of whose lamented author it is my 
 privilege to have been a pupil. I am 
 aware that a large and increasing 
 number of the profession do not yield 
 assent to its arguments—that it is 
 often characterized, to use the lan¬ 
 guage of another member of the Ohio 
 
 ; O O 
 
 Judiciary, with respect to it, as “not 
 having the ring of the true metal,” 
 
 I but it is evident that the duty this 
 court has to perform is to examine it 
 in its bearings upon the clause in ques¬ 
 tion, and not the one in regard to 
 which it was pronounced. 
 
 Judge Story’s first reason for affirm¬ 
 ing the constitutionality of legislation 
 by Congress in execution of the fugi¬ 
 tive servant clause is, the national 
 character of the duty required, and 
 the difficulty of its performance, except 
 under the supervision of the Federal 
 Government. Of all arguments in 
 favor of a claim of power, this is 
 perhaps the most dangerous. If the 
 framers of our organic law did not 
 see this view of the matter in a light 
 sufficiently vivid to induce them to 
 grant the power expressly, we have 
 no right to infer it. And no court 
 has ever yet gone so far as to imply 
 a power in Congress to legislate, from 
 the fact that by such legislation the 
 end could be better attained than by 
 Slate action. And Judge Story rather 
 uses this consideration as an argument 
 strengthening and giving force to the 
 reasons subsequently adduced, than as 
 a distinct basis upon which to rest the 
 claim of power. 
 
 The second reason is, that as the 
 reclamation of fugitive slaves is a 
 “ case arising under the Constitution,” 
 Congress can devolve the execution of 
 the clause upon the Federal Courts, 
 as in the second and third sections of 
 the act they had attempted to do. But 
 the execution of the fugitive criminal 
 clause is confided by the first section of 
 the act to the Governors of the States, 
 and not to the Courts at all, and there¬ 
 fore the argument has no application 
 here. 
 
 The third, last, and principal rea- 
 
7 
 
 son advanced by Judge Story, consists ' 
 in the argument that a duty is here 
 imposed upon the national govern¬ 
 ment, and therefore a corresponding- 
 power of legislation necessarily results. ' 
 The syllogism may be stated thus : 
 
 Where a national duty is imposed, 
 means are given to the Federal Gov- 
 ernment to perform it. 
 
 Such a duty is imposed in the fugi¬ 
 tive servant clause. Therefore there 
 are are means (i. e. legislative power,) 
 to perform it. 
 
 That a power to legislate in such 
 cases, appertains to Congress, cannot 
 be denied. It is expressly given in 
 the last portion of the eighth section 
 of the first article, which, in terms, 
 gives Congress power 
 
 “To make all laws which shall be necessa¬ 
 ry and proper, for carrying into execution 
 the foregoing powers, and all other powers 
 vested by this Constitution, in the Government 
 of the United States or in any department or 
 officer thereof” 
 
 Of course, where there is a duty, 
 there is a power to perform it, and if 
 such power, then a power in Congress 
 to supervise its execution. 
 
 But does the minor of this syllogism 
 apply to the fugitive criminal clause? 
 Is any duty there imposed upon the 
 Government of the United States, or 
 any department or officer thereof, from 
 which a power can be implied? If so, 
 what is it? 
 
 Certainly it is not a national duty to 
 make the demand ; — that is for the 
 Executive of the State from wffience 
 the flight took place. Nor is it any 
 more a national duty to make the sur¬ 
 render. Naturally and necessarily, it 
 must be the duty of some officer of the 
 State in which the accused is found. 
 No national duty w T as created by the 
 same words in the Articles of Confed¬ 
 eration. Nor is any here imposed upon 
 the ‘‘government of the United States, 
 or any department or officer thereof;” 
 and that no national duty is here im¬ 
 posed, was evidently the view of the 
 Congress of 1793, when they confided 
 the discharge of it to the Executive 
 authorities of the several States. 
 
 And it is worthy of remark, that thus 
 w T as destroyed the only argument by 
 which the power of Congress to legis¬ 
 late, can be supported. For, if the 
 duty here is not national, Congress 
 
 cannot legislate; and if they can legis¬ 
 late, it must be to provide for the dis¬ 
 charge of a national duty, by national 
 means. And to assume the power 
 from the fact, that the duty is imposed 
 upon the ‘‘Government of the United 
 States, or some department or officer 
 thereof,” and then in exercising; the 
 power, to devolve the performance of 
 the duty upon the State authorities, 
 would be a stretch of power not often 
 equalled in our history. 
 
 And the three examples of similar 
 implications of power, put by Judge 
 Story in this part of the decision, show 
 that this conclusion is correct. The 
 power to apportion for representatives 
 in Congress, necessarily follows from 
 the power expressly granted to Con¬ 
 gress, and corresponding duty, to 
 enumerate for that very purpose.— 
 The power to legislate a treaty into 
 execution, is the result of the txpress 
 power of the President and Senate to 
 make one. And the right of Congress 
 to give power to the U. S. Courts, by 
 habeas corpus , to protect members of 
 Congress in their freedom from arrest, 
 is but an instance of judicial jurisdic¬ 
 tion, claimed as of ‘a case arising un¬ 
 der the Constitution,” and therefore, 
 wholly inapplicable to the clause in 
 question, which is not proposed to 
 be executed throug-h our courts. No 
 instance is here cited, nor can any 
 case be found where the right in Con- 
 gress to legislate has been implied 
 from a duty imposed on States. As 
 well would they have the right to en¬ 
 force by legislation, the various pro¬ 
 hibitions upon the States; as that they 
 shall pass laws impairing the obli- 
 gadon of contracts, &c. 
 
 The result then is, that as the high¬ 
 est court of our country has never af¬ 
 firmed the constitutionality of such 
 legislation, and as the reasons of the 
 
 O # # ' 
 
 decisions which have been made up¬ 
 on the other sections of this act, do 
 not apply here, there is no reason why 
 this Court should not obey its own 
 convictions of duty. 
 
 One other argument, however, de¬ 
 serves notice before passing from this 
 branch of the case. The practice of 
 the whole country, the opinion of the 
 entire profession, of statesmen, and 
 legislators, is referred to as authority. 
 
8 
 
 Now, recollecting that the necessary 
 result of the reservation to the States 
 and the people, of all power not grant¬ 
 ed. is. that the power must be exclu¬ 
 sive somewhere, (and so the Supreme 
 Court held in the Prigg case.) the ex¬ 
 ercise of a power in the States to legis¬ 
 late for the extradition of fugitives, 
 might as fairly be inferred from the 
 fact that almost every State in the 
 Union has, on the Statute Book, laws 
 bearing upon this subject. But it is 
 not true that the practice has been 
 unbroken of regarding the power of 
 Congress as complete. Against the 
 current of opinion, mainly, it must be 
 
 has passed a sufficient law in dis¬ 
 charge of the constitutional duty im¬ 
 posed upon her, [Swans Statutes , 
 546.) under which the custody of the 
 prisoner is not claimed, he is unlaw¬ 
 fully deprived of liberty. 
 
 Bat admitting;, for the sake of arcru- 
 
 o o 
 
 ment, that Congress may legislate, 
 
 through 
 
 whom 
 
 must it put the ma¬ 
 
 chinery of the law in motion ? There 
 is no more familiar principle than this : 
 acts of Congress are to be executed by 
 officers of the United States, State 
 laws by State officers. Congress can¬ 
 not impose duties upon officers of a 
 State, and so the Supreme Court, 
 
 admitted, setting in that direction, is [(Taney C. J.) seem to have consid- 
 ever seen struggling the eddy of dis- ered in Prigg vs. Pennsylvania. 
 sent. To two distinguished instances True, it is there claimed, that in the 
 among the Judiciary. I need only now reclamation of fugitives from labor, 
 refer. In the case of Jack vs. Martin, State magistrates may act voluntarilv, 
 14 Wend, 505, Chancellor Walworth though they cannot be compelled to 
 
 most ably presented the views of 
 which the present decision is but a 
 feeble reiteration. And I have before 
 
 act. But in what character do they 
 act? Their official character is de¬ 
 rived from, has the extent given it 
 
 me a manuscript copy of a most mas- by, and is to be exercised only in the 
 terly discussion of the question, by mode prescribed by the State. It 
 
 is 
 
 Chief Justice Hornblower, in the the creature of the State. It subsists 
 case of The State vs. the Sheriff of only at the will of the State. And the 
 Burlington . delivered as the opinion of State having given no power of action 
 the Supreme Court of New Jersey, at 
 
 the February term, 1836, resulting in 
 a conclusion of the unconstitutionality 
 of Congressional legislation.* 
 
 But. although practice, common un¬ 
 derstanding, and opinion, long contin¬ 
 ued, may give definitions to words. 
 
 under an act of Congress, it would 
 s em that the individual has no right 
 to use his official character an 1 power 
 under it. And lor this reason, the 
 State of Illinois and many other States 
 have expressly authorized and directed 
 their Governors to act under the law 
 
 and put constructions upon language, lof 1793. 
 
 differing from those which would oth- 
 erwise be received, vet they have 
 never been held to confer powers, not 
 given in the constitution. This is a 
 mode of amending that instrument. 
 
 But the Supreme Court, in the Prigg 
 case, having decided that a right of 
 recaption exists; that the Constitution 
 executes itself; that the ownership by 
 the master follows the slave into a free 
 
 not provided for in it. And the only State: that a master may retake his fugi- 
 safe rule, is to adhere to that written tive servant without legal process if he 
 of our liberties as it is. can doit without a breach of the peace, 
 
 guarantee 
 
 o 
 
 without resorting to such a fluctuating it necessarily follows that a State magis- 
 
 and uncertain guide. 
 
 trate. who delivers him to the owner, be- 
 
 The conclusion, therefore, at which comes the owner’s agent, by this adop- 
 the court arrives is, that the power of tionof his acts which the delivery and 
 legislation upon this subject has not receipt imply. And thus his volun- 
 been conferred upon Congress, but is tary action is protected. In this view 
 exclusive in the States, and as Ohio only can there be voluntary action by 
 
 State officers in carrying out the act 
 And it is a fact, proper here to bereferr-|°l Congress. They act, not as magis- 
 
 ed to, that at least two members of the pres- Jtrates, but as citizens. They cannot 
 
 ent Supnme Court of Ohio, have, within two use the power given them by \he State 
 
 years, publicly avowed their concurrence with r & J 
 
 views similar to those of the present decision, jo carry out an act of Congress, for 
 
9 
 
 the State did not give it for that pur¬ 
 pose. And they are not officers of 
 the United States, having no commis¬ 
 sions from the President. 
 
 In this case, however, there is no 
 right of recaption. The State of Mary¬ 
 land does not own Childs, and, there¬ 
 fore, unless the Constitution executes 
 itself in this clause as well as the 
 other, so that any citizen may make 
 the arrest and delivery, and the de¬ 
 mand may he made upon any one, a 
 proposition to be considered shortly, 
 there can be no legal arrest under this 
 section of the act of Congress by State 
 officers, and there can be no action by 
 them in their official character , even if 
 that proposition be correct. 
 
 The laws of Ohio do not authorize 
 the issuing, by the Governor of Ohio, 
 of a warrant for the arrest of a citizen. 
 His power, derived from the Consti¬ 
 tution and laws of the State, does not 
 extend so far. And when a warrant, 
 as in this case, is issued under the 
 great seal of the State, countersigned 
 by the Secretary of State, purporting 
 to be “in the name and by the au¬ 
 thority of the State of Ohio,” and 
 signed by the Governor in his official 
 capacity, it is simply void. No stat¬ 
 ute of Ohio has authorized such a use 
 of her name and seal, or of the offices 
 of Governor and Secretary. 
 
 And this warrant is directed to the 
 “ Sheriff of Hamilton county.” No 
 law of Ohio has empowered this offi¬ 
 cer to act under the act of 1793. Nor 
 is there any principle by which a 
 right in the sheriff to arrest is sus¬ 
 tainable. If the Governor's action is 
 proper, even if he is protected, under 
 the view thu the voluntary execution 
 of the act by a State officer, can be 
 justified, yet the act, which requires 
 or authorizes him to cause the arrest, 
 does not sanction his employing the 
 shrievalty of a county in this service. 
 He may appoint an agent, but the lat¬ 
 ter must be a person, a citizen, and not 
 a mere embodiment of power. If 
 his voluntary action is proper, then 
 Charles J. W. Smith, if requested 
 by him, might arrest. But he must 
 depend upon the individuality of the 
 citizen, Smith; and cannot invoke the 
 official power of the officer. For this 
 official character is a creature of law. 
 
 and exists only for the purposes of its 
 creation, and this is not one of them. 
 So then, even if the citizen, Reuben 
 Wood, could act in obedience to the 
 law, or, as Governor, could issue the 
 warrant, his right does not extend be¬ 
 yond the employment of an agent, 
 : and the wariant not being an instru¬ 
 ment of procuration, or if it be, not 
 being directed to a citizen competent 
 to accept an agency of this character j 
 i but to an official power, unauthorized 
 j to accept it, the arrest is illegal. 
 Charles J. W. Smith cannot execute 
 the warrant, for it is not directed to 
 him. The sheriff cannot, for no law 
 of the State authorizes him. 
 
 It follows that the warrant, arrest, 
 and delivery here are all in violation 
 of law. And we come then to the 
 only remaining ground upon which 
 the detention of the prisoner by Wise 
 and Zell, can be claimed, to wit: the 
 doctrine maintained, as it would seem 
 from Judge Wayne's opinion in the 
 Prigg case, by Judge Baldwin, that 
 the Constitution fully executes itself, 
 and no legislation, State or National, 
 is necessary. Without denying, for 
 it is unnecessary, the applicability 
 which that eminent jurist made of 
 such a rule to the fugitive servant 
 clause, there would seem to be grave 
 and weighty reasons why it should not 
 apply here. In that case, ownership 
 may accompany the escape of the 
 fugitive, a tight of recaption without 
 process of law may follow him, but 
 here neither exists. An executive de¬ 
 mand must first occur. Upon whom ? 
 The Constitution is silent, but reason 
 and common sense would point to 
 some officer to be designated by the 
 sister State. Is the requisition of the 
 Governor of Maryland an appoint¬ 
 ment of every man in Ohio, into 
 whose hands it may come, as a 
 special constable, to arrest William 
 Childs? Is any citizen to take the 
 requisition, make the arrest, then treat 
 the demand as being upon him, and 
 deliver up the prisoner? Or can the 
 arrest be made by any body, in antici¬ 
 pation of a demand? It is said that 
 an immense body of men were sworn 
 in as special constables, in London, 
 at the time of the great Chartist meet¬ 
 ing, in 1848, but a constabulary force 
 
10 
 
 comprising every elector of a great 
 state like Ohio, or New York, was 
 never heard of before. The truth is, 
 that the Governor of Virginia, on ac¬ 
 count of whose scruples about deliver¬ 
 ing up an escaping criminal, this act 
 of 1793 was passed, was right. The 
 clause needed legislation: legislation 
 pointing out upon whom the demand 
 should be made, and who should cause 
 the arrest. The idea that a demand 
 made by so high an authority as the 
 Executive of a State, was to be upon so 
 indefinite, and vague, and inferior a 
 personage as anybody indifferently 
 into whose hands the requisition might 
 come, never entered into the concep¬ 
 tion of the framers of that instrument. 
 It was not so under the Confederation : 
 then each State had to designate the 
 person upon whom the demand was 
 to be ma le. The clause is unchanged, 
 and the necessary presumption is, that 
 no change was made in order that the 
 States might continue to select the 
 officer most convenient to them. 
 
 But the delivery to Wise and Zell 
 was not made by a citizen. The 
 ‘•'Sheriff” it was, not the individual 
 Smith, so that even if the latter could 
 righfully treat the demand as made 
 upon him, and make delivery, the 
 former cannot. 
 
 It has been suggested, that as the 
 prisoner is now in possession of the 
 agents of Maryland, the Court will 
 not disturb them in returning’ with 
 him : that a constitutional right has 
 been enforced, and the Court will not 
 interfere upon habeas corpus, but leave 
 Childs to his action against the Gov¬ 
 ernor and Sheriff, who have acted il¬ 
 legally. But one illustration is need¬ 
 ed to show the fallacy of this. True, 
 the constitutional right may be exer- i 
 cised, but it must be in a constitution- ' 
 al mode, that is, in such mode as State 
 legislation shall point out. If a trea¬ 
 ty, which, under the Constitution, is 
 part of the supreme law—as much so as 
 the Constitution—should provide for 
 the extradition of fugitive criminals to 
 France or Great Britain, by some off! 
 cer to be named by Congress, and Con¬ 
 gress failing to make designation, an 
 arrest should be made by one of the 
 marshals, and the prisoner be delivered 
 to the agents of the foreign State, would 
 
 a court hesitate to release him ? 
 
 Before passing finally from the con¬ 
 sideration of this part of the case, it 
 is proper to add that, as a citizen, I re¬ 
 gard the provisions of the act of 1793 , 
 respecting fugitives from justice, as 
 eminently wise and just, and should re¬ 
 joice to see them adopted, and made 
 binding upon the citizens of Ohio, as 
 they have been in Illinois, and most of 
 the States, by the passage of a State 
 law, authorizing and directing our 
 Governor to carry them into execution, 
 i and giving to him for that purpose full 
 control over the Sheriffs, and other 
 county officers. 
 
 But to pass from all considerations 
 j of constitutional law, is William Childs 
 a fugitive from justice, within the 
 meaning of the act of 1793? Has 
 h efled from justice within the meaning 
 of the Constitution ? Can a citizen 
 of one State commit a crime in ano¬ 
 ther, return home in the regular course 
 of business, without haste, and by a 
 circuitous route, carry on a friendly 
 correspondence with his victims, after 
 his crime is discovered, and be a fugi¬ 
 tive ? It is not sufficient that the party 
 is charged in one State, and found in 
 another. The words of the Constitu¬ 
 tion are “ a person charged in any State 
 with treason, felony or other crime, 
 who shall flee from justice, and be 
 found in another State,” Ac. The word 
 “ flee,” means something. The para¬ 
 graph containing it was not inserted 
 carelessly. Had the Constitution read 
 thus, “ a person charged in any State 
 with treason, felony, or other crime, 
 who shall be found in another State,” 
 cVc., it would have meant just what 
 the State of Maryland now claims that 
 it does as it stands. It will not do to 
 say that he who is charged with crime 
 is a fugitive, if he does not appear to 
 answer process. A citizen of Ohio, 
 who can have no notice of proceedings 
 in Maryland, cannot thus be made to 
 flee ” from the justice of that State. 
 And were this the true rule, the words 
 “ who shall flee from justice.” would 
 be rendered superfluous, for every 
 man would be a fugitive, who was 
 charged in one State, and found in 
 another, whereas the framers of the 
 Constitution added here the words, 
 
 “ who shall flee from justice.” 
 
11 
 
 Now, is not the construction ob¬ 
 vious ? Admit that the charge need 
 not be made before the flight, though 
 adherence to grammatical rules would 
 lead to a contrary result, yet there 
 must be, in the departure from the 
 State, an intent to avoid the conse¬ 
 quences of crime. A citizen of a State 
 who should commit a crime, and leave 
 the State, is necessarily a fugitive. So 
 he who flees from process. But there 
 is no case where circumstances like 
 those now in testimony have been held 
 to confer a fugitive character on the 
 accused. In Exparte Samuel Adams , 
 7 Law Reporter , 386, the Court con¬ 
 sidered that Adams fled from justice 
 because having made an appointment 
 to meet a creditor at 6 o’clock P. 
 M., he left the State an hour previous, 
 the creditor then intending to arrest 
 him, but this fact not being known to 
 Adams. And this is the extreme case. 
 Courts have not gone beyond it. 
 
 The views here expressed I consider 
 as sustained in substance by the cases 
 of Ex-parte Smith , 3 McLean, 138, and 
 Exparte Heyward, 1 Sandford’s Supe¬ 
 rior Court Reports , 706. 
 
 Perhaps precedent to the question 
 as to the fugitive character of the ac- 
 I cused, is that as to the right of the 
 Court to look behind the Governor’s 
 warrant, into the affidavit and testi¬ 
 mony. There seems to be no good 
 reason to prevent it. The Governor 
 is not a Court of general jurisdiction, 
 in whose record is absolute verity. He 
 is no Court at all, but a mere ministe¬ 
 rial officer. 2 Marshall’s Decisions, 
 479. And that his warrant is not 
 conclusive, see Exparte Smith , above 
 cited. 
 
 For these reasons, the prisoner will 
 be discharged. For many reasons, 
 the Court would have preferred not to 
 decide this case, but to wait the result 
 of the writ of error allowed by Judge 
 Spalding to the decision of the Com¬ 
 mercial Court, but in a case of depri¬ 
 vation of personal liberty no such 
 course can be pursued.* 
 
 * The decision, it is proper to remark* 
 which was pronounced in this case, was 
 wholly extempore, and without notes, and 
 the foregoing has been written since. Of 
 course, it differs much from the opinion 
 as expressed orally.