The Journal of Negro History, Volume 6, 1921 | Page 2

great jurist and drifted toward the localism long since advocated by Judge Roane of Virginia.
In making the national government the patron of slavery, a new sort of nationalism as a defence of that institution developed thereafter, however, and culminated in the Dred Scott decision.[4] To justify the high-handed methods to protect the master's property right in the bondman, these jurists not only referred to the doctrines of Marshall already set forth above but relied also upon the decisions of Justice Storey, the nationalist surviving Chief Justice Marshall. They believed with Storey that a constitution of government founded by the people for themselves and their posterity and for objects of the most momentous nature--for perpetual union, for the establishment of justice, for the general welfare and for a perpetuation of the blessings of liberty--necessarily requires that every interpretation of its powers have a constant reference to those objects. No interpretation of the words in which those powers are granted can be a sound one which narrows down every ordinary import so as to defeat those objects.
In the decision of Prigg v. Pennsylvania, when the effort was to carry out the fugitive slave law,[5] the court, speaking through Justice Storey in 1842, believed that the clause of the Constitution conferring a right should not be so construed as to make it shadowy or unsubstantial or leave the citizen without the power adequate for its protection when another construction equally accordant with the words and the sense in which they were used would enforce and protect the right granted. The court believed that Congress is not restricted to legislation for the execution of its expressly granted powers; but for the protection of rights guaranteed by the Constitution, may employ such means not prohibited, as are necessary and proper, or such as are appropriate to attain the ends proposed. The court held, moreover, in Prigg v. Pennsylvania, that "the fundamental principle applicable to all cases of this sort, would seem to be, that when 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." It required very little argument to expose the fallacy in supposing that the national government had ever meant to rely for the due fulfillment of its duties and the rights which it established, upon State legislation rather than upon that of the United States, and with greater reason, when one bears in mind that the execution of power which was to be the same throughout the nation could not be confided to any State which could not rightfully act beyond its own territorial limits. All of this power exercised in executing the Fugitive Slave Law of 1793 was implied, rather than such direct power as that later conferred upon Congress by the Thirteenth Amendment, which provided that Congress should have power to pass appropriate legislation to enforce it.
As the Supreme Court decided in the case of Prigg v. Pennsylvania that the officers of the State were not legally obligated to assist in the enforcement of the Fugitive Slave Law of 1793, Congress passed another and a more drastic measure in 1850 which, although unusually rigid in its terms, was enthusiastically supported by the Supreme Court in upholding the slavery regime. The Fugitive Slave Law of 1850 deprived the Negro suspect of the right of a trial by jury to determine the question of his freedom in a competent court of the State. The affidavit of the person claiming the Negro was sufficient evidence of ownership. This law made it the duty of marshals and of the United States courts to obey and execute all warrants and precepts issued under the provisions of this act. It imposed a penalty of a fine and imprisonment upon any person knowingly hindering the arrest of a fugitive or attempting to rescue one from custody or harboring one or aiding one to escape. The writ of habeas corpus was denied to the reclaimed Negro and the act was ex post facto. In short, the Fugitive Slave Law of 1850 committed the whole country to the task of the protection of slave property and made slavery a national matter with which every citizen in the country had to be concerned. In the interest of the property right of the master, moreover, the Supreme Court by the Dred Scott Decision[6] upheld this measure, feeling that there was in Congress adequate power expressly given and implied to enforce this regulation in spite of any local opposition that there might develop against the government acting upon individuals to carry out this police regulation. The Negro was not a citizen and in his non-political status could not sue in a Federal court, which for the same