The Act of 1793 proceeded from a Congress that had already recognized the United States Bank, chartered by a previous Congress, which, though sanctioned by the Supreme Court, has been since in high quarters pronounced unconstitutional.  If it erred as to the Bank, it may have erred also as to fugitives from service.  But the Act itself contains a capital error on this very subject, so declared by the Supreme Court, in pretending to vest a portion of the judicial power of the Nation in State officers.  This error takes from the Act all authority as an interpretation of the Constitution.  I dismiss it.

The decisions of the Supreme Court are entitled to great consideration, and will not be mentioned by me except with respect.  Among the memories of my youth are happy days when I sat at the feet of this tribunal, while MARSHALL presided, with STORY by his side.  The pressure now proceeds from the case of Prigg v.  Pennsylvania (16 Peters, 539), where is asserted the power of Congress.  Without going into minute criticism of this judgment, or considering the extent to which it is extra-judicial, and therefore of no binding force,—­all which has been done at the bar in one State, and by an able court in another,—­but conceding to it a certain degree of weight as a rule to the judiciary on this particular point, still it does not touch the grave question which springs from the denial of Trial by Jury.  This judgment was pronounced by Mr. Justice Story.  From the interesting biography of the great jurist, recently published by his son, we learn that the question of Trial by Jury was not considered as before the Court; so that, in the estimation of the learned judge himself, it was still an open question.

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(1). First of the power of Congress over this subject.

The Constitution contains powers granted to Congress, compacts between the States, and prohibitions addressed to the Nation and to the States.  A compact or prohibition may be accompanied by a power,—­but not necessarily, for it is essentially distinct in nature.  And here the single question arises, Whether the Constitution, by grant, general or special, confers upon Congress any power to legislate on the subject of fugitives from service.

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The framers of the Constitution were wise and careful, having a reason for what they did, and understanding the language they employed.  They did not, after discussion, incorporate into their work any superfluous provision; nor did they without design adopt the peculiar arrangement in which it appears.  Adding to the record compact an express grant of power, they testified not only their desire for such power in Congress, but their conviction that without such express grant it would not exist.  But if express grant was necessary in this case, it was equally necessary in all the other cases. Expressum facit cessare tacitum.