It is to be observed from the report of Prigg’s case that Pennsylvania,
by her attorney-general, pressed the argument that the obligation
to surrender fugitive slaves was on the States and for the States,
subject to the restriction that they should not pass laws or establish
regulations liberating such fugitives; that the Constitution did not
take from the States the right to determine the status of all persons
within their respective jurisdictions; that it was for the State in
which the alleged fugitive was found to determine, through her courts
or in such modes as she prescribed, whether the person arrested was, in
fact, a freeman or a fugitive slave; that the sole power of the general
government in the premises was, by judicial instrumentality, to restrain
and correct, not to forbid and prevent in the absence of hostile State
action; and that for the general government to assume primary authority
to legislate on the subject of fugitive slaves, to the exclusion of the
States, would be a dangerous encroachment on State sovereignty. But to
such suggestions this court turned a deaf ear, and adjudged that primary
legislation by Congress to enforce the master’s right was authorized by
the Constitution.
We next come to the Fugitive Slave Act of 1850, the constitutionality
of which rested, as did that of 1793, solely upon the implied power of
Congress to enforce the master’s rights. The provisions of that act were
far in advance of previous legislation. They placed at the disposal of
the master seeking to recover his fugitive slave, substantially the whole
power of the nation. It invested commissioners, appointed under the act,
with power to summon the _posse comitatus_ for the enforcement of its
provisions, and commanded all good citizens to assist in its prompt and
efficient execution whenever their services were required as part of the
_posse comitatus_. Without going into the details of that act, it is
sufficient to say that Congress omitted from it nothing which the utmost
ingenuity could suggest as essential to the successful enforcement of
the master’s claim to recover his fugitive slave. And this court, in
_Ableman ~v.~ Booth_, 21 How. 506, adjudged it to be “in all of its
provisions fully authorized by the Constitution of the United States.”
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