struggle between the man and the magistrate. By no law or judicial decree of the Commonwealth have the rights of any one master, in any one case, been in the least degree impaired. Nor could they be to-day, unless we suppose (what the history of the State does not authorize us to suppose) that the judicial department will be false to its duty. I am speaking now of the legal, and not the moral, aspect of the case.

Nor can the Commonwealth be justly said to have been guilty of any breach of the national "compact," if that word can be fitly applied to the Constitution of the United States. There clearly could be no breach of the compact by an act of the Legislature which was not upheld by its judicial and supported by its executive department.

To say that the State of Massachusetts has, by her legislation, broken the Constitution of the United States, is, with great deference, a contradiction in terms. As matter of law, the thing is impossible; for a conflict of the statute of a State with the Constitution or laws of the United States brings the statute directly under the cognizance of the Federal judiciary, by whose action it is at once shorn of its

power.

The word "compact" is not applicable to the Constitution of the United States. The Constitution is not a compact between the States, or the people of the several States. It is a frame of government, ordained and established by "the people of the United States;"

of limited sphere it may be, but in that sphere supreme. The statute passed by a State Legislature in conflict with that Constitution is itself broken by the collision, and not the Constitution, the hammer,

and not the anvil.

This is not, my dear sir, mere verbal criticism, but matter of vital principle; for it is, as you well know, upon the double ground that the Constitution is a compact which a State is capable in law of breaking, and that the statutes of Massachusetts and of other Free States are breaches of the compact, that Southern statesmen attempt to justify secession. That Constitution is not a fragile compact, but an infrangible government. If such statutes exist, they are only futile attempts to do what, by law or ordinance, a State cannot do, abrogate or impair a law paramount to its own. The moment the conflict is seen, the statute disappears. There is nothing left but written or printed words, signifying nothing, effecting nothing.

If these views are sound, the retention upon our statute-book of any provisions which tend to obstruct or defeat the Fugitive-slave Law, or mitigate its rigors, is an idle ceremony. If they cannot do this, they are useless; if they can do it, they are void. Before they can do it, you must omit from the Constitution of the United States, which you print with your statutes, these solemn provisions:

"This Constitution and the laws of the United States, which shall be made in pursuance thereof . . .

shall be the supreme law of the land; and the judges of every State shall be bound thereby, any thing in the Constitution or laws of any State to the contrary notwithstanding."

“The judicial power (of the United States) shall extend to all cases, in law or equity, arising under the Constitution, the laws of the United States, and treaties made, or which shall be made, under their authority."

In the examination of our statutes which have relation to fugitives from service, I have found but one provision, which, as matter of strict law, appears to me to be in conflict with the Constitution and laws of the United States. That is in the 19th, 20th, and 21st sects. of chap. 144 of the General Statutes. If, by the fair construction of these sections, the court to whom a writ of habeas corpus is returnable, must or may, when it appears by the return that the person whose restraint is in question is claimed as a fugitive from service, proceed to try the issues of fact, although it also appears that the prisoner was in the custody of the marshal of the United States or his deputy, under a warrant or certificate duly issued, the validity of the provisions cannot, in my judgment, be maintained; and this, I think, is the fair, though, I will not say, necessary construction of these sections. The ground upon which they may perhaps be maintained is, that the custody of the marshal, under the warrant, constitutes an implied exception to the statute. But, if this con

struction were adopted, it is obvious the law would be of little practical value to the fugitive. It is made valid by taking from it its effective force in the only cases likely to arise.

The object of these provisions is to give to the alleged fugitive from service the trial by jury, which is not secured by the law of the United States. If the provision was valid and effectual, I frankly say, I would not repeal it: I would rather imbed it in the Constitution of the Commonwealth.

But it is ineffec

No judge could

tual under the law as decided. enforce it, so as to take the prisoner from the custody of the marshal, and try the issues of fact, who is faithful to his duty, and the laws of which he is the

servant.

I cannot assent to the construction of the sixty-second section of this law, which holds that a person honestly claiming his slave may be subjected to an ignominious punishment by a misapprehension or mistake of his rights, or a failure to maintain them. Applying to this section the settled rules of construction for criminal or penal statutes, such result, I respectfully submit, cannot be reached. It is the removal of a person from the Commonwealth who is not held to labor or service, on "the pretence" that he is so held to labor or service, or with the intent to subject him" to labor or service. not due, that is made an offence under the statute. It is the holding-out of a false claim, a pretence, and the intent to subject one to service not due, which the statute punishes. Yet as jurists, for whom we all have

profound respect, seem to think the statute susceptible of another construction, and as the meaning of all penal statutes should be as free from doubt as possible, the section should be so amended as to render it certain that it applies only to claims made in bad faith, falsely made.

Nor do I understand, that, under the sixty-fourth and sixty-fifth sections of this statute, the volunteer militia of the Commonwealth cannot be used to protect the officers of the United States, in the streets of our towns and cities, from lawless violence. The volunteer militia are not to act in any manner in "the seizure, detention, or rendition," of a fugitive from service; but they may do, nay, more, must do, under the statutes, exactly what they did in the Burns case, -preserve, at all hazards, the public peace.

Under the provisions of chap. 164 of the General Statutes, the militia may be called out by the mayor, and other officers therein designated, to protect the peace of the city, in case of any riot, actual or threatened; and, in such event, officers and soldiers are bound to obey, and are exempted from any penalty for obedience (chap. 164, Ela vs. Smith, 5 Gray, 121). I see no ground for supposing that the statutes have modified the law, stated so clearly in this case by the present Chief-Justice of the Commonwealth.

But, in giving the legal construction to these sections, are they not divested of their power, and left of little practical value? Are not the provisions of the Personal-liberty Bill of 1855 which remain, so