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

State's rights to secure the perpetuation of slavery,
there followed a reaction after the death of John Marshall in 1835,
when the court abandoned to some extent the advanced position of
nationalism of this 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