Lead Opinion
delivered the opinion'of the Court.
• This is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the' judiciary act of 1780, ch. 20, for .the purpose of revising- the judgment of that Court, in a case involving the construction of the Constitution and laws of the United States.
The facts are briefly these: The plaintiff in error was indicted in the Court of Oyer and-Terminer for York county, for having, with force and violence, taken and carried'away from that county to the'state of Maryland, a certain négro woman, named Marga.ret Morgan, with a design and intention of selling and. disposing of, and keeping her as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1826. Thát statute in the first section, in substance, provides, that if any person or persons shall, from and after the passing of the act, by fome and violence take and carry away, or cause to be taken and carried away, and shall by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away, or seduce any negro or mulatto from any part of that commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto as a slave or servant for life, or for any term whatsoever; every such person or persons, his or their aiders or abettors, shall,.on conviction thereof, be deemed ■guilty of a felony,-and shall forfeit and pay á m not less than five hundred, nor more than one thousand dollars; and moreover,' shall be sentenced to undergo a servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years; and'sball be confined and kept to hard labour, &c. There ■ are many other provisions in the statute which is recited at large in the record, but ,to which it is in our view unnecessary to advert-upon.the present occasion.-
The plaintiff in ertor pleaded not guilty to. the indictment;'. and' at the trial the jury found a special verdict, which, in substance, states, that the negro woman, Margaret Morgan, was a slave for life, and held' to labour and service under and according.:to . the
Upon this special verdict, the Court of Oyer, and Terminer, of York county, adjudged that the plaintiff, in error was guilty of the offence charged in the - indictment. A writ-of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed.' From this latter judgment, the present writ of error has been brought to this Court.-
Before- proceeding to discuss the very-important and interesting questions. involved in this record, it is fit' to say, that the cause has been conducted in the Court below, and has been brought hereby the eo-opérátion and sanction, both of the state-of Maryland,'.and the state of Pennsylvania, in the most friendly and courteous spirit, with, a view; to have those questions finally disposédmf by the adjudication of.this Court; -so that the agitations on this.subject in both states, which have had a tendency to interrupt the -har-rpopy- betweén.- them,, may subside, and the conflict 'qf opinion he put at rest., It" should also be added, that the statute qf Penpsylvania of-1826, was (as has.been suggested at the bar) passed- with á view of meeting the supposed wishés of Maryland on the subject of- fugitive slaves; and that,-although it has failed to -produce the good effects intended in its practical construction, the.-result was unforeseen and undesigned.
- 1. The question arising -in the case, as to the constitutionality of -the statute .of Pennsylvapia, has been most elaborately argued at
New questions which have ever come before this Court involve mort delicate and important considerations; and few'upon which the public at large' may be presumed to feel a moré profound and pervading interest: We have Accordingly given them our most-deliberate examination; and it has become my duty to .state the result to which we have arrived, and the' reasoning by which it is supported.
Before, however, we proceed to the points more immediately' before us, it may be well — in order to'clear the Case of difficulty— to say, that in the exposition of this part of the Constitution, we shall limit ourselves to those considerations'which appropriately and exclusively belong to it, without laying down any rules of interpretation of -a .inore ■ géneral nature. • -It. will, indeed, probably, be found, w.hen we look to the character' of the Constitution itself,, the objects which it seeks' to-attain, the powers which it confers, the'‘duties-, which it enjoins., and the rights" which it secures, as-well as. the 'known historical, fact that, many of its provisions were matters of Compromise of opposing interests and opinions; that no Uniform rule of-interpretation can be- applied, to it which'may not allow^ even if It does, not positively demand, many’modifications in its actual application to particular clauses.And, perhaps, the safest., rule óí interpretation after all will-be found to :be-, to look ,to :the ‘nature and objects of the particular powers, duties, and rights, with all the lights and aids of eontém- - porary history; and to give' to- the words.of each just Such opera-.
There are two clauses in the Constitution upon-the subjéct of fugitives, which stand in juxtapósition with each other, and have been thought mutually to illustrate each other. They are both contained in the second'section of the fourth article, and are in the following words: “Á person charged in any. state' with treason, felony, or other cripie, who shall flee from justice, and be' found in .another state, shall, on demand of the' executive authority of the.state from which he fled, be delivered tip, to-be removed to the state haying jurisdiction of the crime.”
“No person heldto service or.labour in one state under the laws thereof, escaping into another,.shall in .consequence' of any Mw or regulation therein, be discharged from, such service or labour; but shall he delivered up, .on claim of the party to whom- such service or labour may be due.”
The last-clause .is that, the true interpretation whereof is directly in- judgment before us. Historically, it is well known,-that the object of this clause was to secure to the citizens-of the slaveholding states the complete right and title of ownership- in their slaves, as property, in every state in. the Union into which they might escape from the state where they were held in servitude. The frill recognition of this right and title was indispensable to the security of this'species of property in all the slaveholding states*, and, indeed, was so vital to the-preservation of their domestic interests and institutions, that it- cannot be doubted that it constitinted a fundamental article, without the adoption of which-the Union could not have been formed, > Its true design, was to guard against the doctrines and principles prevalent in the nomsiaveholding states, by. preventing them from Intermeddling with, or obstructing, .or abolishing the rights of the owners of slaves.
By the general law of nations, no,nation is bound to recognise the state of slavery, .'as to foreign slaves found within its territorial dominions, when, it is'in . opposition .to it's own. policy .and' institutions, infayour of the subjects of other nations where slavery is recognised. If it does it, it is as a naatter-of comity, and not as a matter of international right. The state of: slavery’is ¡deemed to be a mere municipal regulation; founded upon and limited bo the rángeoftbe territoriallaws;- This was fullyrecognised in Somerset’s
■ How, then, aré we.to interpret the'language,,of the clause? The true answer is, in. such amanner, as,-consistently with the words,"shall fully and completely effectuate the whole objects of it. If by one mode of interpretation the right must become, shadowy .and unsubstantial, arid- without any remedial power adequate to the éndy and by another mode it will attain its just end-and secure its manifest-purpose; it would seem, upon principles of reasoning, absolutely irresistible, that the. latter ought to prevail: No Court of justice can be authorised-so to„construe any clause of the Constitution as to defeat its-obvious ends, when another .construction, equally accordant with the; words and sense thereof, will enforce ana protect them.
The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the Slave, which no State law or regulation can in any way qualify, regulate, control, or restrain. ■ The slave is mot. to he discharged from service or labour, in consequence of any. state law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any .state lafv or state regulation, which interrupts* limits,..delays, or. postpones the right of-the owner to the immediate possession.'of the- slave, and the immediate command-of-his service and labour, operates, pro tanto, a discharge of the slave therefrom* The question can nevér be, how much.the slave is discharged'from; but whether he is
We have said that the clause contains a positive and unqualified recognition! of the right of the owner in the slave, unaffected by any state law or regulation whatsoever, because there is no qualification or restriction of it to be found therein ; and we have no right to insert any which is not, expressed, and cannot he fairly implied; especially are we estopped from so doing, when the clause puts the right to the service or labour upon the same ground aftd to the same- extent in every other state as in the state from which the slave escaped, and in which .he was held 'to the service or labour. • If this be so, then all the incidents to that right attach also; the owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him as • property.; and we all know that' this right of seizure and recaption is universally acknowledged in all the slaveholding states. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to' this very subject. Mr. Justice Blackstone (3 Bl. Comm. 4) lays it down as unquestionable doctrine. a Recaption or reprisal (says he.), is another species of remedy by the mere act of the party .injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one.’s wife, child, or servant; in which case the owner of the goods, and the husband, parent, or master may lawfully claim and retake them, wherever he happens to find them, so it he not in a riotous manner, or attended with a breach of the peace.” Upon this ground We have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in' every sta.te in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence. In this sense, and to this extent, this clause of the Constitution may properly be said to execute itself; and to require no aid from legislation, state or national.
Buv the.clause of the Constitution does not stop here; nor indeed, consistently with its professed objects, could it do so. Many
If, therefore, the clause of the Constitution had stopped at tlfe mere recognition of the right, without providing or contemplating any means by which it might be established and enforced in cases where it did not execute itself, it is plain that it would have, in a great variety of cases, a delusive ahd empty annunciation.' If it did not contemplate any action.either through state or national 'legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right,-it would be left to the mere comity of the states to act as they should please; and would depend for its security upon the changing, course of public- opinion, the mutations of public policy, and the general 'adaptations of remedies for purposes strictly according -to the lex fori.
And this leads us to the consideration of the other part of the clause, which implies at once a guaranty and duty. It says, “ But he (the . slave) shall be delivered up on claim of the party- to
" These, and many other questions, will readily occur , upon the slightest attention to the clause; and it is obvious that they can receive but one satisfactory answer. They .require the aid of legislation to protect the right, to enforce' the delivery, and to secure the .subsequent possession of the slave. If, indeed, the, Constitution guarantees. the right, and if it requires the delivery upon the claim of the owner, (as cannot well be doubtéd,) the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to-all cases of this sort, would seem to be, that where the end is required, the means are . given; and where the duty is enjoined, the. ability to perform it is conteniplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state functionaries,,or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them; jand /
. It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at áll, against some other person; and inasmuch ,as the right is a right of property capable of being recognised and asserted by proceedings before a Court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy" between the parties, and a case “ arising under the Constitution” of thé United States; within the express delegatiomof judicial power given by that -instrument. Congress, then, may call that, power into activity for the very purpose of giving effect to that right; and if so, then it may prescribe'' the mode and extent in which it shall be applied, and how, and under what circumstances the proceedings, shall'afford a complete protection and guaranty to the. right.
Congress has táfcen this very view of. the power and duty of the national-government. As early as the >year 1791, the attention of Congress was drawn to it, (as we shall hereafter more fully seé,) in consequence of some practical difficulties arising under the other clause, respecting fugitives from justice escaping into other states. The result of their deliberations; was the passage of the act of the 12th of February, 1793, ch. 51, (7,) which, after having, in the first and second sections, provided for the base of fugitives. from justice by a demand to be made of the delivery through the executive authority of the state where they are found,
In a general sense, this act may bé truly said to cover, thé wholé ground of the Constitution, both as. to fugitives from justice, and fugitive slaves; - that is, it covers' -both the subjects, in its enactments 5 not because it exhausts the remedies which may be ap-plied by Congress ■ to enforce the rights, if the provisions of . the act shall in practice be found not to attain the object of the Constitution; but because it points out fully all the modes of attaining those objects, which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Constitution. ■ If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the sanie subject; and by necessafy- implication prohibit it, For if Congress have a constitutional power to regulate a particular subject, and they do' actually regulate it in a given manner, and in a certain form, it cannot
But it has been argued, that the act of Congress is unconstitutional, because it does not fall within the scope of any of the. enumerated powers of legislation confided to that body ;.and therefore it is void. Stripped of its «artificial and technical structure, the argument comes to this, that although rights, are exclusively secured by> or duties are exclusively imposed upon the national government, yet, unless the power to enforce these rights, or to execute these duties cah he found among the express powers of legislation enumerated in the Constitution, they remain without any means of giving them effect by any act of Congress; and they must operate solely proprio vigore, however defective may be their operation; nay, even although, in a practical sense, they may become a'nullity from the want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpretation of the Constitution, it must, in a great measure, fail fo attain many of its avowed and positive objects as a security of rights, and a recognition of duties. , Such á limited construction of the Constitution has never yet been adopted as correct, either in theory or practice. No one has ever supposed that Congress could, constitutionally, by its legislation, exercise powers, or enact laws beyond the powers delegated to it by the Constitution; but it has, on various occasions, exercised powers which were necessary and proper us means to carry into effect rights expressly
Thus, for example, although the Constitution has declared that representatives shall be apportioned among the states according to their respéctive federal numbers; and, for this purpose, it has expressly authorized Congress, by law, to provide for an enumeration of the population every ten years; yet the power- to apportion representatives after this enumeration is made, is nowhere found among the express powers given to Congress, but it' has always beeni acted upon as irresistibly flowing from the duty positively enjoined by the Constitution. Treaties made between the United States and foreign powers, often contain special provisions, which do .not execute themselves, but require the interposition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. . It has .been supposed to result from the duty of the national government to fulfil all the obligations of treaties. The senators and representatives in Congress are, in all cases, except treason, felony, and breach of the peace, exempted from arrest during their attendance at the sessions thereof, and in going to and returning from the same. May not Congress enforce this right by authorizing a writ of habeas corpus, to free them from an illegal arrest in violation of this clause of the Constitution ? If it may not, then the specific remedy to enforce it must exclusively depend upon the local legislation of the states; and may be granted or refused according to their own varying policy, or pleasure. The Constitution also declares that the privilege of the writ of habeas corpus shall not be suspended, unless,when in cases of rebellion or invasion, the public safety may require it. No.express power is given to Congress to secure.this invaluable right in the' non-enumerated cases, o-r to suspend the writ in cases of rebellion or invasion. And yet it would be difficult to say, since this' great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually
• These cases are put merely by way of illustration, to show that the rule of interpretation, insisted upon- at the argument, is quite too narrow to provide for the .ordinary exigencies of the national government, in cases where rights are intended to be absolutely secured, and duties are positively enjoined by the Constitution.
The very act of 1793, now under consideration, áífórds the-most- conclusive proof that. Congress has acted upon a very different rule- of interpretation, and has supposed that the right as well as the duty of legislation on the subject of fugitives from justice, and fugitive slaves was within the scope of the constitutional authority conferred on the. national legislature. • In respect to fugitives from justice, the Constitution, although it expressly provides that the demand shall be made By the executive authority of the state from which the fugitive has . fled, is silent as to the party upon whom the demand -is to be made, and as to the mode in which it shall be made. This very silence occasioned embarrasments in enforcing the fight • and duty at an. early period after the' adoption of the Constitution; and produced a hesitation on the part of the executive authority of Virginia to deliver up a fugitive from justice, uppn the demand of the executive Of Pennsylvania, in the year 1791; and as we historically know from the message of President Washington and the public documents of that period, it was the immediate cause of the passing of the act of 1793, which- designated the person (the state executive) upon whom- the demand should b.e made, and the mode and proofs upon and in which- it should be made. From that time down to the present hour, not a doubt has been breathed upon the constitutionality of this part of the act ^ and every executive in the Union has constantly acted upoñ and admitted its validity. . Yet the. right and the. duty are dependent, as to their mode of execution, solely o'n the act of Congress; and. but for that, they would remain a nominal fight and passive duty; the. execution of which being intrusted to and required of no one in particular, all persons might be at libérty-to disregard it. This very acquiescence, under such circumstances, of the highest state functionaries, is a most decisive proof of the universality of the opinion that the
The same uniformity of acquiescence in the validity of the act of 1793, upon the other part of the subject-matter, • that of fugitive slaves, has prevailed, throughout the whole Union until a comparatively recent period. Nay; being from its nature and. character more readily susceptible, of being brought into controversy, in Courts of justice, than the former, and-of enlisting in opposition to it the feelings, and it maybe the prejudices of some portions of the non-slaveholding states; it has naturally been brought under' adjudication in several states in the Union, and particularly in Massachusetts, New York, and Pennsylvania, andón all these occasions its validity has been-affirmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle, 62 ; Glen v. Hodges, 9 Johns. Rep. 67; Jack v. Martin,
But we do not wish to rest our present opinion upon the ground
' The remaining question is, whether the power of legislation upon this subject is exclusive in the national government, or cdncurrent in the states, until it is exercised by Congress. In our opinion it is exclusive; • and we shall now proceed briefly to state our reasons for that opinion. The doctrine stated by this Court, in Sturgis v. Crowninshield, 4 Wheat. Rep. 122, 193, contains the true, although not the sole rule or consideration, which is applicable to this particular subject. ’ “Wherever,” said Mr. Chief Justice Marshall, in delivering the opinion of the Court, “ the terms in which a power is granted to Congress, or the nature Of the ■power require that it should be exercised, exclusively by Congress, the subject is as completely taken from the state legislatures, as if they had been forbidden to act.” The nature of the power, and the true objects to be attained by it, are then as important to be weighed, in considering the question of its exclusiveness, as the words in which it is granted.
In the first place, it is material to state, (what has been already incidentally hinted at,) that the right to seize and retake fugitive slaves, and the duty to deliver them up, in whatever state of the Union they may be found, and of course the corresponding power in Congress to use the appropriate means to enforce the right and duty, derive their whole validity and obligation exclusively from the Constitution of the United States; and are there, for the first time, recognised and established in that peculiar cha
In the next .'place, the nature of the provision and the objects to be - attained' by it, require that it should be controlled by one and the same will, and ac,t uniformly by the same system of regulations throughout the Union. If, then, the states have a right, in the absence of legislation by Congress, to act upon the subject, each state is at liberty to prescribe just such regulations as suit its own policy, local convenience, and local feelings. The legislation of one state may not only be different from, but utterly repugnant to and incompatible with that of another. The time, and mode, and limitation of the remedy; the proofs of the title,, and all other incidents applicable thereto, máy be prescribed in one state, which are rejected or disclaimed in another. One state may require the owner to sue in one mode, another in a different mode.. One state may make a statute of limitations as to the remedy, in its own tribunals, short and summary; andther
It is scarcely conceivable that the slaveholding states would have been satisfied with leaving to the legislation of the non-slaveholding states, a power of regulation,'in the absence of that ..of Congress, which would or might .practically amount to a power to destroy the rights of the owner. If the argument, therefore, of a concurrent power in the states to act upon the subject-matter ift the absence of legislation by Congress, be wellfounded; then, if Congress hád never acted at all; or if the act of Congress should be repealed without providing a substitute, there would be a resulting authority in each of the states to regulate the whole subject at its pleasure.; and to dole put its own remedial justice, or withhold it at its pleasure. and according'toits own views of policy and expediency Surety-such a state of things never could have been intended, under such a solemn guarantee of right and. duty. On the other hand, construe the right of legislation as exclusive in Congress, and every evil, and every danger vanishes. The right and the duty: are' then co-extensiye and uniform in remedy and operation , throughout the whole Union. The owner has the same security, and the same remedial 'justice, and .the same exemption from state regulation and control, through, howeyer many states he may pass with his fugitive slave in his possession, in transitu, to his own domicile. But, upon the other supposition, the moment he passes the' state' line, he becomes amenable to the laws of another sovereignty, whose regulations may greatly embarrass or delay the exercise of his fights; and even be repugnant to those of the state \yhere he first arrested the fugitive. Consequences like these show that
These are some of the reasons, but by no means all, upon which we hold the power of legislation on this subject to be exclusive in Congress. To. guard, however, against any possible misconstruction of our views, it is proper to state, that we are by,no 'means to be understood in any manner whatsoever to doubt of to interfere with the police power belonging to the dtates in virtue of their general sovereignty. ■ That police powerextends over all subjects within the territorial limits of the states; and has'never been conceded to the United States. It is wholly distinguishable from the right and duty secured by the provision now under consideration; which "is exclusively, derived from and secured by the Constitution of the United States, and dwesits whole efficacy thereto. We entertain no doubt whatsoever, that the states, in virtue of théir general police power, possess full jurisdiction to arrest and restrain runaway slaves, and.'remove them from their borders, and otherwise to secure themselves against their depredations and evil example, as they certainly may dp in cases of idlers,-vagabonds, and paupers. The rights of the owners of fugitive slaves are in no just sense interfered with, or regulated by such a course; and in many eases, the operations of this police-power, although designed essentially for other purposes, for the protection, safety, and peace of the state, may essentially promote and aid the interests of the owners. But such regulations can never be permitted .to interfere with or to obstruct the jüst rights of the owner to reclaim his slave, derived from the Constitution of the United States; or with the remedies prescribed by'Congress to aid and enforce the same. '
Upon these grounds, we are of opinion that the act of Pennsylvania upon which this indictment is founded/ is unconstitutional
Concurrence Opinion
■I concur in the opinion pronounced by the Court, that the law of Pennsylvania, under which the plaintiff in error was indicted, is unconstitutional and void; and that the judgment against him must be reversed. But as the questions before us arise upon the construction of the Constitution of the United States, and as I do not assent to all the principles contained in the opinion just delivered, it is proper to state the points on which I differ.
. I agree entirely in all that .is said in relation to the right of the master, by virtue of the third clause of the 'second section of the fourth article of the Constitution of the United States, to arrest his fugitive slave iri any state wherein he may find him. He has a right-, peaceably, to take possession of him and carry him away without any certificate or warrant from a judge of the District or Circuit Court.of the United States, or from any magistrate of the state; and whoever resists or obstructs him, is a wrongdoer: and every state láw'which proposes directly or indirectly to authorize such resistance or obstruction is null and void, and affords no justification to the individual or the officer of the state who acts under it. This right of thé master being given by the Constitution of the United States, neither Congress nor a state legislature can by any law or regulation impair it, or restrict it.
I concur also- in all that is contained in. the opinion concerning the power of Congress to protect the citizens of the slaveholding, .states, inthe enjoyment of this right; and to provide by law an effectual remedy to enforce it, and to inflict penalties upon those who shall violate its provisions; and no state is authorized to pass any law, that comes in' conflict in any respect with the remedy provided by Congress.
But, as I understand the opinion of the Court, it goes further, and decides- that the power to provide a remedy for this right is vested exclusively in Congress; and that all laws upon the subject passed by a state, since the adoption of the Constitution of the United States, are null and void; even although they were intended, in good faith, to protect the owner in the exercise of his rights of property, and do not conflict in any degree with the act of Congress.
I do not consider this question as necessarily involved in-the case before us ; for the law of Pennsylvania, under which the plaintiff in error was prosecuted, 'is clearly in conflict with. the Constitution of the United States, as well as with the'law of 1793. But as the question is discussed in the opinion of the Court, and as I do not assent either to the doctrine or the reasoning by which it is maintained, I proceed to state very briefly my objections.
The opinion of the Court maintains that the power over this subject is so exclusively vested in Congress, that no- state, since the .adoption of the Constitution, can pass any law in relation to it. In other words, according to the opinion just delivered,'the state authorities are prohibited from interfering for the purpose of protecting the right of the master and aiding him in. the recovery of his pr'operty. " I think the states are not prohibited; and that; on the contrary, it is enjoined upon them as a, duty tóprotect and support -the owner when he is endéavouring to obtáTn possession of his property found , within their respective territories.
‘ The language used in the Constitution does not, in my judgment, justilythe construction, given to it by the Court. It con. tains no words prohibiting the several states from passing laws to enforce this right. They are in express terms forbidden to make any regulation that shall impair it. But there the prohibition \ stops.. And according to the settled rules of construction for all Written instruments, the prohibition being confined to laws inju
I do npt speak of slaves whom their masters voluntarily take into a non-slaveholding state. That case is -not before us.. I speak of the case provided for in the Constitution ; that is to .say, the casé of a fugitive who has escaped from the service of his owner, and who/has taken refuge and is found in another state.
Moreover, the. clause . of the Constitution of which we ate speaking, does not purport to be a distribution of the rights of sovereignty by which certain enumerated powers of government and legislation are exclusively confided to the- United. States. ■ -It does not deal with that subject. It provides merely for the rights of individual citizens of different states, and places them under the protection of the general government; in order more effectually to guard them from invasion by the. states. There are other clauses in the Constitution in which other individual rights are provided for and secured in like manner; and it never has been suggested that the -states could not uphold and maintain them, because they were guarantied by the Constitution of the United States. On the contrary, it has always been held to be the duty
Thus, for example, the Constitution provides that no state shall pass any law impairing the obligation • of contracts. This, like the right in question, is an individual right, placed under the protection of the general government. And in order to secure it, Congress have passed a law authorizing a writ of error to the Supreme Court, whenever the right thus secured to the individual is drawn in question, and denied to him in a State Court. And all state laws impairing this right are admitted to be void. Yet no one has ever doubted that a state may pass laws to enforce the obligation of a contract,-and may give to the individual the full benefit of the right so guarantied to him by the Constitution, without waiting for legislation on the part of Congress.,
Why may not the same thing be done in relation to the individual right now under consideration ?
Again. The Constitution of the United States declares that the citizens of each state shall be entitled to all the privileges and immunities of citizens in the'several states. And although these privileges and immunities, for greater safety, are placed under the guardianship of the general government; still the states may by their laws and in their tribunals protect and enforce them. They have not only the power, bfit it is a duty enjoined upon them by this provision in the Constitution.
The individual right now in question, stands on the same grounds, and is given by similar words, and ought to be governed by the same principles. • The. obligation to protect rights óf this description is imposed upon the several states as a duty which 'they are bound to perform; and the prohibition extends to those laws only which violate the right intended to be secured.
I cannot understand the rule of construction by which a positive and express stipulation for the 'security of certain individual rights of property in the' several states, is held to imply a' prohibition to the states to pass-any laws to guard and protect them.
The course pursued by the general government after the adoption of the Constitution, confirms my opinion as to its true construction.
Nodaw was passed by Congress to give a'remeSy for this right,
This is riot the mode in which the Constitution intended-to guard this important right; nor is this the kind of remedy it intended to give. The delivery of the property itself — its proiript and immediate delivery — is plainly required, and was intended to. be secured.
Indeed, if the- state authorities are absolved from all obligation to protect this right, and may stand by and sé" it violated without' an' effort to defend it, the act of Congress of 1793 scarcely deserves the name of a remedy. The state officers mentioned in the law are not bound to execute the duties imposed upon them by Congress, unless they ctreose to do so, or are required to do so by a law of the state; and the state legislature hag the power, if it thinks proper, to prohibit them. The act of 1793, therefore, must depend altogether for its execution npon the officers of the United States named in it. And the mas'ter mustrtake tne fugitive, after he has seized him, before a judge of the District or Circuit Couff, residing in the state, and exhibit his proofs, and-procure from the judge his certificate of ownership, in order to obtain the protection in removing his property which this act of Congress professes to give.
Now, in many of the states there is but one district judge, and
But it is manifest from the face of the law, th'at an • effectual remedy was intended to .be given by the act-of 1793. It’never designed to compel the master to encounter the hazard and expense of taking the fugitive in all cases, to the distant residence of one of the judges of the Co.urts of the United. States; for it authorized him,-also, to go' before any magistrate of the- county, city, or town corporate wherein the seizure should'be "made. And Congress evidently supposed that it had provided a tribunal at the place of the arrest, capable of furnishing the .toaster with the evidence of ownership to protect him -more effectually from unlawful interruption. So far from regarding the state authorities as prohibited from interfering in cases of this description, the Congress of that day must have counted upon their cordial co-opera^ tion. They legislated with express reference to state support. And it will be remembered, that when this law was passed,, the government of the United' States was administered by the- men who had but recently taken a leading part in the formation of the Constitution. And the reliance obviously placed upon state authority for.the'purpose of executing this law, proves that the con struction how given to the Constitution by the Court had not entered into. their, minds. Certainly, it is not the construction which it received in the states most interested in its faithful execution. Maryland, for example, which is substantially one .of the parties to this case, has continually passed- laws, over since the adoption of the Constitution of the United States, for the arrest
I am aware that my brethren of the majority do not contemplate these consequences; and do not suppose that the opinion they have given will lead to"them. And it seems to' be supposed that laws, .nearly similar to those I have mentioned, might be passed by the state in the exercise of her powers over her internal police, and by virtue of her right to rémóve from her territory disorderly and evil-disposed persons, or those who, from the nature of her institutions, are dangerous to her peace and tranquillity. But it would be difficult' perhaps, to' bring all the laws I have mentioned within the- legitimate. scope, of' the- internal powers of police. • The fugitive is not always arrested in order to prevent a dangerous or evil-disposed person from remaining- in her territory. He is himself most commonly anxious to' escape
It has not heretofore been supposed necessary, in order to justify these laws, to refer them to such questionable powers of internal and local police. They were believed to stand upon surer and firmer grounds. They were passed, not with reference merely to the safety and protection of the state itself; but in order to secure the-delivery of the fugitive slave to his lawful owner. They were passed by. the state in the performance of a duty believed to be enjoined upon it by the Constitution of the United States.
It is true that Maryland as well as every other slaveholding state, has a deep interest in the faithful execution, of the clause in question. But the obligation of the compact is not confined to them- ^ is equally binding upon the faith of every s'tate in the Union;- and has heretofore, in my judgment, been justly regarded as obligatory upon all.
- I. dissent therefore, upon these grounds, from that part of the opinion of the Court which denies the obligation and the right of the state authorities to protect the master, when he is endeavouring, to seize a fugitive from his service, in pursuance of the right given to him by the Constitution of the United States; — provided the state law- is not in conflict with the remedy provided by Congress.
Concurrence Opinion
I concur in the judgment given-by the Court in this case. But not being able to yield my assent to all the doctrines embraced in the opinion, I will very briefly state the grounds on which my judgment is placed.
This provision naturally divides itself into -two distinct considerations. First,.the right affirmed; and secondly, the mode and' manner in which that' right is to be asserted and carried into execution.
The right is secured by the Constitution, and requires no law to fortify or strengthen it. It affirms, in the most unequivocal manner, the right of the master to the service of his slave, ac-. cording to the laws of the state under which he is so held. And it prohibits the states from discharging the slave from such service by any law or regulation therein.
The second branch of the provision, in my judgment, requires legislative regulations pointing out the mode and manner in which the right is to be asserted. It contemplates the delivery of the person of the slave to the owner; and does not leave the owner to his ordinary remedy at law, to recover damages on a refusal to deliver up.the property of the owner. Legislative provision, in this respect, is. essential for the purpose of preserving peace and good order in the community. Such cases, in some parts of our country, are calculated to excite feelings which, if not restrained by law, might .lead to riots and breaches of the peace. This legislation, I think, belongs more appropriately to Congress than to the-states, for the purpose of having, the regulation uniform throughout the United States, as the transportation of the slave may be through several states; but there is nothing in the subject-matter that renders state legislation unfit. It is no objection to the right of the. states to pass laws on-the subject, that there is no power anywhere given to compel them to do it. Neither is there to compel Congress to pass any law
Concurrence Opinion
I concur altogether in the opinion of the Court, as it has been given by my brother Story.
In that opinion it is decided:
1. That the provision in the second section of the-fourth article of the Constitution, relative to fugitives from service or labour, confers upon the owner of h fugitive slave the right, by himself' or his agent,' to seize and arrest, without committing a breach of the peace, his fugitive slave, as property, in any state of the Union; and that no 'state law is constitutional which interferes with such right.
2. That the provision authorizes and requires legislation by Congress to guard that right of seizure arid arrest against all state .and. other interference, to make the delivery of fugitive slaves more effectual when the claims of owners are contested; and to insure to owners the unmolested transportation of fugitive slaves, through any of the states, to the state from which they may have fled. .
3. That the legislation by Congress upon the provision, as the supreme law of the land, excludes all state legislation upon the same subject; and that no state can pass any law or regulation, or 'interpose such as may have been a law or regulation when the Constitution of the United States was ratified,'to superadd to, control, qualify, or impede a remedy, enacted by Congress, for the delivery of fugitive slaves to the parties to whom their service or labour is due. ' ' • -
5. That the act of Congress of the 12th February, 1793, entitled “An act, respecting fugitives from justice, and persons escaping from the service of their masters,” gives a remedy; but does not exhaust the remedies, which Congress may legislate upon the subject.
6. That the points so decided are not intended to interfere in any way, nor do they interfere in any manner, with the police power in the. states, to arrest and imprison fugitive slaves, to guard against their misconduct and depredations; or to punish them for offences /and crimes committed in the states to which they may have fled.
7. These points being. so decided and applied to the case before the Court, it follows that the law of Pennsylvania, upon which the plaintiff is indicted is unconstitutional; and that the judgment given by the Supreme Court of Pennsylvania against the plaintiff must be reversed.
Ail of” the judges of'the Court concur in the opinion that the law under which the plaintiff in error was indicted is unconstitutional. All of them concur, also, in the declaration; that the provision in the Constitution was a compromise between the slaveholding, and the non-slaveholding .states, to secure to the former fugitive slaves as property. All of the members of the Court, too, except my brother Baldwin, concur in the opinion that legislation by Congress, to carry the provision into execution, is constitutional; and he contends that the provision gives to the owners of fugitive slaves all the rights of seizure and removal which legislation could give; but he concurs in the opinion, if legislation by Congress be necessary, that the right to legislate is exclusively in Congress.
There is no difference, then, among the judges as to the reversal of the judgment; none in respect to the origin and object of the provision, or the obligation to exercise it. But differences do exist as to thé mode of execution. Three of the judges have expressed the opinion, that the states may legislate upon the provision, in aid of the object it was intended to secure; and that
I believe, that the power to legislate upon the provision is exclusively in Congress.
The provision is; that “ No person, held to service or .labour in one state, under the laws thereof, escaping into another, shall, in consequence of anylaWof regulation thereinrbe discharged from such service or labour, but shall be delivered- up on claim of the party to whom such service or labour is due/'’
The clause contains four, substantive declarations 5 or two conditions, a prohibition, and a. direction.
First, The fugitive must owe service or labour under the .law of the state from which he has escaped; second, he must have fled from it. The ■ prohibition is, that he cannot be discharged from service, in consequence of any law or regulation of the state in which he may be; and the direction is affirmative of-an. obligation upon the states, and declarative of a .right in the- party to whom the service or labour of a fugitive is due.
. My object,- and.the only object' which-I have in view, in what I am about to say, is, to establish the position' that Congress has the exclusive right to legislate upon this provision of the Constitution. I shall endeavour to prove it by the condition of the states when the Constitution was formed; by references to the provision itself; and to the.Constitution generally;
Let it be remembered, that the conventioners who • formed the Constitution, were the representatives of equal sovereignties. That they were assembled to form a more perfect union than then existed between the states under the confederacy. That they cooperated to the same end; but that they were divided into, two' .parties, having antagonist interests in respect to slavery.
One of these parties, consisting of several states, required as a condition; upon which any constitution should be presented to the states for ratification, a full and perfect security for their slaves as property, when they fled into any of the states of the Union. The fact is not more plainly stated by me than it urns put in the convention. The representatives from' the non-slaveholding states assented to the condition.- The provision under review was proposed and adopted by the unanimous vote of the convention It, with an allowance of a certain portion of slaves with
The prohibition upon the states to disciiarge fugitive slaves is absolute.-
. The provision, however, does not contain, in detail, the manner of asserting the right it was meant to secure. .Nor is there in it any expressed power of legislation; nor any expressed prohibition of stqte legislation. But it does provide, that delivery of a’ fugitive shall be made on the claim .of the owner — that the fugi
Those who contend that the states may legislate in aid of the object of the provision, admit that-Congress can legislate to the full extent to carry it into execution. There is, then, no necessity for the states to legislate. This is a good reason why they should not
My first remark is, and I wish it to be particularly observed, that the question is not one only of the right of the states to legislate in aid of this provision, .unconnected with other considerations bearing directly upon the question. The true question in the case is, by what rules shall the compromise or guarantee be construed; so that the obligations and rights of the states under the provision may be ascertained and secured.'
It is admitted, that the provision raises what is properly termed á perfect obligation upon all of the states to abstain from doing any thing which may interfere with the rights secured. Will this be so, if any part of what may be necessary to discharge the obligation is reserved by each state, to be done as each may think proper ? The obligation is common to all of them, to the same extent. Its object is to secure the property of some of the states, and the individual rights of their citizens in that property. Shall, then, each state be permitted to legislate in its own way, according to its - own judgment, and their separate notions, in what manner the obligation shall be discharged to those states to which it is due,? To permit some of the states to say to the others, how the property included in the provision was to be secured by legislation, without the assent of the latter, would certainly be, to destroy the equality..and force of the guarantee, and the equality of the states by which it was made. That was
Is it not more reasonable to infer, as the states were forming, a government for themselves, to the extent of the powers conceded in the Constitution, to which legislative power was given to make all laws necessary.and proper to carry into execution all powers vested in it — that they meant that the right for which some of the states stipulated., and to which all acceded, should, from the peculiar nature of the property in .which only some of the states were interested — be carried into execution by that department of the general government in which they were all to be represented, the Congress of the United States.
But is not this power of legislation by the states, upon this, provision, a claim for each to. use its discretion in interpreting the manner in which the guarantee sháll be fulfilled ?
-Are there no rules of interpretation, founded upon reason and nature, to settle ,this question, and to secure the rights given by. the provision, better than the discretion of the parties to the obligation ? Has not- experience’ shown that those rules must be applied to conventions between nations, in order that justicé may be done ? All civilized nations have consented to be bound by them;' and they are a part of the laws of nations. Is not one. of those rules, the' maxim that neither one or the other of the interested or contracting powers has a right to interpret his act or treaty at his pleasure ? Such is the rule in respect to the treaties and conventions of nations foreign to each other. It applies with equal necessity and force to states united in one general govern'ment. Especially to states making a provision in respect to property peculiar to some of them, which has become so interwoven with their institutions and .their representation in the general government of all of them, that the right to such property must be maintained and guarded, in order to preserve their- sepárate existence, and to -keep up their constitutional representation in-Congress. Such cannot be" the case, .unless there is uniformity in the‘law for asserting the right to fugitive slaves; and if the states can legislate, as each of them may think it should be done, a remedy, by which the right of property in fugitive slaves is to be ascertained and finally concluded. Nor does it matter that the
But it is said, all that is contended for, is, that the states may legislate to aid the. object, and that such legislation will be constitutional if it does not conflict with the remedies which Congress may enact. This is a cautious way of asserting the right in the states, and it seems to impose a limitation which makes it unobjectionable. But the reply to it is, that the right to legislate a remedy, implies so much indefinite power over the subject, and such protracted continuance, as to the mode of finally determining whether a fugitive owes service and labour, that the requirements of the remedy, without being actually .in conflict with-the provision ur the enactments of Congress might be oppressive to those most interested in the provision, by interposing delays and expenses more costly than the value of the fugitive sought to be reclaimed. Ordinarily, and when rightly understood, it is true that the' abuse of a thing is no argument against its correctness or its use; but that, suggestion can only be correctly made in cases in support of a right or power abstractly and positively right, and which has been abused under the pretence of using it; or where the proper use has been'mistaken. In matters of government, however, a power liable to be abused is always a goci reason
■ Admit the states to legislate remedies in this case, besides 'such as are given by Congress, and there will be no security for the delivery of fugitive slaves in half of the states of the Union. Such was the case when the Constitution was adopted. The states might legislate in good faith, according to their notion's how such a right of property-should be tried. They have already-done so, and the act of Pennsylvania, now .under .consideration, shows, that the assertion of a right to a fugitive slave is burdened by provisions entailing expenses disproportioned to his value.; and that it is- only to be asserted, by arraying against the claim all of those popular prejudices which, under other circumstances, would be proper feelings against slavery.
-But the propriety of the rule of interpretation, which I have invoked to exclude the states from -legislating upon this provision. of the Constitution, becomes more obvious, when it is -remembered that the provision was not intended only to secure the property of individuals, but that through their rights, that' the institutions of the states-should be preserved, so long as any one of the states chose to continue slavery as a part of its policy-
The framers of the Constitution did -not act upon such narrow grounds. They weré engaged in forming a government .for all of the states; by concessions of sovereign rights from all, without impairing the actual, sovereignty of any one, except within the sphere of what was conceded. One great object was,-that all kinds of property, as well that which was common, in all of the states; as that which was peculiar to any of them, should be protected in all of the states, as well from any interference with it by the United States, as by the states.- Experience had shown that under the confederacy, the reclamation of fugitive slaves was embarrassed and uncertain, and that they were yielded to by the states only from comity. It was intended that it should be no longer so. The policy of the different states, some of them contiguous, had already become marked and decided upon the subject of slavery. There was no doubt it would become more so. It was foreseen, unless the delivery of fugitive slaves was made.a part of the Constitution, and that the right of the states to discharge them from service was taken' away, that some of the states would become the refuge of runaways; and, of course, that in proportion to the facility and certainty of-any state being a refuge, so would the right of individuals,, and the institutions of the slaveholding states, be impaired. The latter were bound, when forming a general government with the other states, under which there was to be a community of rights and privileges for all citizens in the several states, to protect that property of their citizens which was essential to the preservation of their state constitutions. If this had not been done, all of the property of the citizens would have been protected in every state, except that which was the most valuable in. a number of them. In such a case, the states would have become members of the Union upon unequal terms. Besides, the property of an individual is not the less his, because it is in another state than that in which he lives. It continues to be his, and forms' á part of the wealth of his state. The provision, then, in respect to fugitive .slaves, only comprehended within the general rule a species of property not within it before. By doing so, the right of individuals, and that of the
■But I have a further reason for the conclusion to which I have come upon this point; to which I cannot see that an answer can be given.
The provision contemplates, besides the right of Seizure by the ■owner; that a claim may be'made, when a seizure has not been effected, or afterwards, if his right shall be contested.. That the claim shall be good, upon the.showing- by the claimant that the person charged as a fugitive owes service, or labour, under the. laws of the state from which, he fled.
The prohibition in the provision, is, that he shall riot be “discharged, in consequence of any law or regulation- of a state” where he maybe. • If then, in a controverted case,.a person
T understand the provision to mean; and when its object and the surrender by the.statestof the right to discharge are kept in mind, its.obvious meaning to every one must be, that the states are not ohl-y prohibited from discharging a fugitive from service by a law, but that they'shall not make or apply-regulations to try the question of the fugitive owing service. The languagé of the provision, is,‘“No person, &c., shall in consequence of any law.or regulation therein,” be discharged from such service or labour. - The words “ in consequence,” meaning the effect of a cause — certainly embrace-regulations to try the right of property, as well’as -laws,' directly discharging a fugitive .from Service,
' If this be not so, the states may regulate the mode of an owner’s seizing a fugitive, slave, prohibiting it from -being done except’ by warrant, and by an officer; thus denying to an owner the right to use a casual opportunity to repossess himself of this kind of property, which theré is a right to. do, in respect, to all other kinds of property, where not in the possession of some one else. It may regulate the quantity and quality of the proof to establish the right’ of an -owner to a fugitive, and give compensatory and. punitory damages against a claimant, if his right benot established’ according, to such proof.' It might limit the trial, to particular times and Courts; give- appeals from one to other Courts; and protract the ultimate decision, until the value in controversy
But further, does not the language of this provision in the precise terms used, “ shall not be discharged from such service or labour,” show, that the states surrendering the right to discharge, meant to exclude themselves from legislating a'mode-of trial, which, from the time it would take, would be a qualified or temporary discharge to the injury of the-owner ? Would not a.postponement of'the trial of a fugitive owing service or labour, for one ■month,be a loss to the owner of his service, equivalent to a discharge for that time. ■ And if a state can postpone by legislation the trial for one month, may it not do so for a longer time ? And whether it be for a longer-or a shorter time, is it not a discharge from service, for whatever time it may be ? -It is no answer to this argument,, to say, that time is necessarily involved' in the prosecution of all rights. The question here is not as to a time being more or less necessary — but as to the right of a state by regulations to try the obligation of a fugitive to service or' labour, to fix in its discretion the time it may take.
The subject- might be further discussed and illustrated by arguments, equally cogent with those already given. But I forbear. For the foregoing reasons, hi addition to- those given in the opinioii of the Court, I am constrained to come to the conclusion,'that the right, of legislating upon that clause in the Con
I had intended to give an account of the beginning and progress of the legislation of the states upon this subject; but my remarks are, already so much extended, that I must decline doing so. It would have, shown, perhaps, as much as 'any other instance, how a mistaken, doubtful, and hesitating exercise of power in the commencement, becomes,.by use, a conviction .of its correctness. It would also have shown that thé. legislation of the states in respect to fugitive slaves, and particularly that which has most embarrassed the recovery of fugitive slaves, has been in opposition to an unbroken current- of decisions in the Courts of the states,- and those of the United States. Not a point has been decided, in the cause fiow before this Court, which has not been ruled in the Courts of Massachusetts, New York, and Penn-. sylvania, and in other State Courts. Judges have differed as to.some of them, but the Courts of the states have announced all of them, with the consideration, and solemnity of judicial conclusion. In cases too, in which the decisions were appropriate, because the points 'were raised by the record.
I consider the point I have been maintaining, more important than any other in the opinion of the Court. It removes those causes which have contributed more than any other to disturb that harmony which' is essential to the continuance of the Union. The framers of the Constitution knew it to be so, and inserted the provision in it. Hereaftef they ca.nnot occur, if the judgment of this Court in -this cause shall meet with the same .patriotic acquiescence which the tribunals of the states and the people of'the states have heretofore accorded to its' decisions. The recovery of fugitive slaves will hereafter, be exclusively regu'r lated by the Constitution of the United States, and the acts of Congress. -
I have heard it Suggested, also, as a reason why the states should, legislate upon this subject, that Congress -may repeal the remedy it has given, and leave the provision unaided by legislation ‘ and that then the states might carry it into execution. Be it so; but the latter is not .needed, for though legislation by Con-, gress supports the rights intended to be secured, there is energy enough in the Constitution without legislation upon ¡this subject, to protect and enforce -what it gives.
Concurrence Opinion
Concurring entirely as I do with the majority of the Court,,in the conclusions they have reached relative to the effect and validity of the statute of-Pennsylvania now under review, it is with unfeigned regret that I-am constrained to dissent from some of the principles and reasonings which that majority in passing, to our commpn conclusions, have believed themselves called on to affirm.
. Guided by the rule just mentioned, it seems to me that the regular action of the Court in this case.is limited to an examination of the . Pennsylvania' statute, to a comparison of its provisions with the third clause of the fourth article of the Constitution,, and with the act of Congress of. 1793, with which the.law of Pennsylvania is alleged to be in'conflict; and that to accomplish these purposes, a general definition of contrast of the powers of the state and federal governments,' was neither requisite nor próper. The majority of my brethren, in the conscientious discharge of their duty, have thought themselves bound to pursue a different course ; and it. is in their definition and distribution of state and federal powers, '.and in the modes and times they have assigned for' the exercising . those powers, that I find myself compelled to differ with them.
That portion ofthe.Constitution which provides for the recovery of fugitive slaves, is ..the third clause of. the second section of the fourth article; and is in these words: “No person held to service or labour in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation, therein, be. discharged from such service or labour; but shall be delivered up on claim of the party-to whom such service or labour- may be due.” The paramount authority of this clause in the Constitution to guaranty to the owner the right of property in his slave, and the absolute" nullity of any state power directly of indirectly, .openly or covertly, aimed to impair that right, or to. obstruct, its enjoyment; I admit, nay, insist upon to the fullest extent. I contend, moreover, that the act of 1793, made in aid of this clause of the Constitution and for its enforcement, so far as it conforms to the Constitution is the supreme law to the states; and cannot
- Whilst I am free to admit the powers which are exclusive in the federal government, some of them became so denominated by the express terms of the Constitution; some because they are prohibited to the states; and others because their existence, and much more their practical exertion by the two .governments, would be repugnant, and would neutralize if they did not conflict w ith and destroy each other: I cannot regard the third clause of the fourth article as falling either within the definition or meaning of an- exclusive power. Such a power, I,consider as originally and absolutely, and at all times incompatible with partition or association. It excludes every thing but itself.
There is a class of powers originally vested in the states, which by the theory of the federal government have been transferred to the latter; powers which the Constitution of itself does not execute, and which Congress may or may not enforce either in whole or in part, according to its views of policy or necessity; or as it may find them for the time beneficially executed or otherwise under the state authorities. These are not properly concurrent, but may be'denominated dormant powers in the federal government; they may at any time be awakened into efficient action by Congress, and from that time so far as they are called into activity, will of course displace the pow.ers of the states. But should they again be withdrawn or rendered dormant, or should their primitive exercise by the states never be interfered with by Congress; could it be properly said that because 'they potentially existed in Congress they were therefore denied to the states ? The prosperity, the nec'essities of the country, and the soundest rules of constitutional construction, appear to me to present a decided negative to this inquiry. Nay, I am prepared to affirm, that even in-instances wherein Congress may have legislated, legislation by a state which is strictly ancillary, would not be unconstitutional or improper.
'In-'the case, of- Houston v. Moore,
In the case of the City of New York v. Miln,
If there is a powér in the states to authorize and order their arrest and detention for delivery to, their owners, not only will the probabilities of recovery be increased by the performance of duties enjoined by law upon the citizens of those states, as well private persons as those who- are offlcers of the law; but the incitements of interest, under the hope of reward, will in a certain' class of persons powerfully co-operate to the same ends. " But let it be declared that the rights of arrest and detention, with a view of restoration to the owner, belong solely to the federal government, exclusive of the individual right of the owner to seize his property, and what are to be the consequences ? In the first place, whenever the master, attempting to enforce his right of seizure under the Constitution, shall meet with resistance, the inconsiderable number of federal officers in a state, and'their frequent remoteness from the theatre of action, must, in numerous instances, at once defeat his right of property, and deprive him
It has been said that the states in the exercise of their police powers may arrest and imprison vagrants or fugitives who may endanger the peace and good order of society; and by tha.t means • contribute to the recovery by the master of-his fugitive slave. It should be recollected, however, that the police power of a state has no natural affinity with her exterior relations, nor wi h those
As this case involves questions deeply' interesting, if not vital, to the permanency of the union of these states; and as I differ on one point from the opinion of the Court, I deem it proper tp state my own views on the subject.
. It provides, “ If any person or persons shall, from and after'the passing'of this act, by force and'violence, take and cariy away, or. cause to be taken or carried away, and shall by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away, or seduce any negro' or mulatto from any part or parts of this commonwealth, to any other place or places what'sbever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to-be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto as a slave or servant for life, or for any term whatsoever; every such person Or persons, his or their aiders or ’abettors shall, on conviction thereof, be deemed guilty offfelony, and shall be fined in' a sum not less than five hundred nor more than one thousand dollars,, and shall be sentenced' to imprisonment and hard,labour hot less than seven nor more than twenty-one years.”
The plaintiff being a citizen '’of Maryland, with others, took Margaret Morgan, a coloured tvoman, and a slave, by force and violence, without the certificate required by the act of Congress, from the state of Pennsylvania, and brought her to the state qf Maryland. By an amicable arrangement between the two states, judgment was entered against the defendant, in the Court where, the indictment was found; and on the cause being removed to the Supreme Court of the state, that judgment, pro forma, was affirmed. And the case is' now here for our examination and decision..
. The last clause of the second section of the fourth article of the Constitution of the United States, declares that, “No person held to service or labour in one state, under the laws..thereof, escaping into another, shall, in consequence of any’law or regulation therein, be discharged from such service or labour; but shall be delivered, up. on ‘ claim of .the party to whom such service or labour may be due.”
, This clause of the Constitution is now, for the first time, brought before this Court for consideration.
Opinions so conflicting, and'which so deeply pervaded the elements of society, could be brought to a reconciled action only, by an exercise of exalted patriotism. Fortunately for the country, this patriotism was not wanting in the convention'and in the states. The danger of discord and ruin was seen, and felt, aftd acknowledged; and this led to the formation of the'confederacy. The Constitution, as it is, cannot be said to have imbodied in all its parts, the peculiar views.of any great section of the Union; but it was adopted by a wise and far-reaching conviction, that it was the best which, under the circumstances, could be devised; and that its imperfections would be lost sight of, if not forgotten,in the national prosperity and glory which it would secure.
A law is better understood by a knowledge of the evils which led. to its adoption. And this applies most strongly to. a fundamental law.
At an early period of our history, slavery existed in all the colonies; and fugitives from labour were claimed and delivered up under .a spirit of comity or conventional law among the colonies. . The articles of confederation contained no provision on the subject, and there can be no doubt that the provision introduced into the Constitution was the result of experience and rpanifest necessity. A matter so delicate, important, and' exciting, was very properly introduced- into the organic law.
- Does the provision, in' regard to the reclamation ■ of fugitive slaves, vest the power'exclusively in the federal government?
This must be determined from the language of the Constitution,, and the nature of the power.
The language of the provision is general. It covers the whole
The nature of the power shows that it must be exclusive.
It was designed to protect the rights of the master, and against whom? Not against the state, nor' the people of the state in which he resides; but against the people and the legislative action of other states where the fugitive from, labour might be found. Under the confederation, the master had no legal means of enforcing his rights in a state opposed to slavery. A disregard of rights thus asserted was deeply felt in the south. It produced great excitement, and would, have led to results destructive of the Union. To. avoid this, the constitutional guarantee was essential.
The necessity for this provision was found in the views and feelings of the people of the states opposed to slavery; and who, under such an influence, could not be expected favourably to regard the rights of the master. Now, by whom is this paramount law to be executed ?
.It is contended that the power to execute it rests with the states. The law was designed to protect the rights of the slaveholder against the states opposed to those rights; and yet, by this argument, the effective power is in the hands of those on whom it is to operate.
This would produce a strange anomaly in the history oi legislation., It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies that ever assembled, they were, perhaps, most exempt.
The clause of the Constitution under consideration declares that no fugitive from labour shall be discharged from such labour, 'by any law or regulation of . the state into which he may have ' fled. Is the state to judge of this ? Is it left for the state to de termine what effect shall be given to this and other parts of the provision ?
This power is not susceptible of division. It is a part of the fundamental- law, and pervades, the Union. The rule of action which it prescribes was- intended to be. the same in all the states. This is essential to the attainment of the objects -of the
' To give full effect.to this provision,-was legislation necessary ? Congress, by the passage of the act of 1-793,legislated on the sub-, ject, and this shows how this provision-was- construed shortly after its adoption: and the reasons- which were deliberately, considered, and which led to the passage of the act, show clearly that it was necessary! These reasons will be, more particularly-referred to under another head of the argument. But looking only at the. Constitution, the propriety, if riot the ’necessity of legislation.is seen..
The Constitution provides' that the fugitive from labour, shall be delivered up, on claim beirtg inade by the person 'entitled to such labour; but it is silent.as to how and on whom this claim shall be made: The act of Congress provides for this defect and uncertainty, by,establishing the mode of procedure.
It is contended, that the power to legislate, on this .subject is concurrently in the states and federal government. -..That the acts of the latter are paramount, but that the acts of the former must, be regarded as of authority, until abrogated by the federal .power. How a power exercised by one sovereignty can be called concurrent, which may be abrogated by another, I cannot comprehend. A concurrent power,' from its nature, I had supposed must be equal. If the federal government by legislating on the subject annuls all state legislation on the same subject, it must follow that the power is in the federal government and not in the state.
Taxation, is a power common to a state and the general government, and it. is exercised by each .independently of the other And this must be. the character of all concurrent, powers.
It is said that a power may be vested in the federal govern
Jf the power' is given by the state constitution, it -must follow thaf-it may be exercised independently of the federal'po.we'r; for it is presumed no one will sanction the doctrine that Congress, 'by legislation, may abridge the constitutional power of a state.
How can the power of' the state ;be derived from- the federalConstitufion ? Is it assumed on -the ground that Congress- having the power-have failed to exercise it? Where is suedanassrimption to.end ? May it not be applied with equal force and propriety to the whole ground of federal legislation; excepting only the powers inhibited to the states ? Congress have not legislated upon a-certain subject, but this does riot show that they may not have duly Considered it. Or, they may-have acted without'.e'xhausting'the power. Now, in my judgment, it is illogical and unconstitutional to hold.that-ineither of these' cases a state .may .legislate.
Is this a vagrant power of-the "state, like a floating lana warrant to be -located on the hrst vacant spot that shall be found? May a state occupy a fragment of federal power- which has not been exercised, and like a tenant at will, continue to- occupy it until it shall have notice to quit ?
• No-such- power is-derived by implication from'the federal Constitution. It defines the powers of "the genera! government, and imposes certain restrictions and duties on the states. But beyond this it in no degree affects the powers of the states.' The powers which belong to a state are exercised independently. In its sphere of sovereignty it.stands on- an-equality with the federal government, and is' not subject to its control. It- would be as dangerous as humiliating to the rights of a state, to hold that it legislative powers were exercised to any. extent and under anj • circumstances, subject to the paramount action of . Congress.. Sdch a doctrine would lead to serious arid-dangerous conflicts of power.
The act of 1793 seems to cover the whole constitutional ground. The third section provides, “That -when a person -held to labour, in' any state or territory of the United 'States,- under the laws
The fourth section imposes a penalty-on -any person, who shall obstruct or hinder siich claimant, his agent; or'attorney, &c., or shall rescúé such -fugitive, when só arrested, &c.
It seems to be taken as a conceded point in' the argument, that Congress had no power to impose duties on state officers, as provided in the above act. •. As.a .general principle this is true; but does not the case under consideration form an exception ? Congress can no' more regulate the jurisdiction of the state tribunals, than a state -can define the judicial power of the Union. The officers of' each government are responsible only to the respective authorities under which they are commissioned. But do' not the "clauses in the Constitution in regard to fugitives from labour, and from justice, give Congress a power over state officérs, on these subjects?' The’ power in both-the cases is admitted or proved to be exclusively in the federal government.
The clause in the- Constitution preceding the one in relation to fugitives from labour, declares that, “A person charged in any state -with treason, felony, of other crime, who shall- flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he flecl; be delivered up to -be removed to the' state having jurisdiction of the crime.”.
In the'first section of the act of-1793, Congress have provided that on demand being made as above, “it shall be the duty of
The constitutionality of this law, it is believed, has. never been questioned. It has been obeyed by,the governors of.st.ates; who Have uniformly acknowledged its obligation. • To some demands-surrenders - have not .been made; but the refusals have', in no instance,.been on the ground that .the. Constitution apd act of Congress were of no binding force. Other reasons have been assignéd.
Now, if Congress may by legislation require this duty to be performed by the highest state officer, may they not on the same principle require appropriate duties in regard to the surrender of fugitives from labour, by other state officers; Over these subjects the constitutional .power is the same.
In both cases-the act. of 1793'"defines On'what evidence the, delivery shall be made.- This was necessary, as the Constitution is silent on .the subject. The act' provides that on claim being made of a fugitive from- labour,. “ it Shall be. the duty of such judge or magistrate to- give a certificate that the person claimed owes'services to the claimant.”
The Constitution requires “ that such person shall' be delivered up, on claim of the party to .whom the service is due.” - Here is a positive dutjr imposed; and Congress have, said in what mode this duty shall be performed... Had they not power to do so? • If the Constitution-was designed, in. this respect, to require, not a negative but a positive duty on the state and the people of the state where the -fugitive from labour may be found;. of which, it would seem, there can be no doubt; it must be equally clear that Congress may prescribe in what manner the claim and surrender shaH'be.made. Iam therefore brought t<? the conclusion that, although, as a general principle, Congress cannot impose duties on state officers, yet, in the cases of fugitives from labour and from justice, they have the power to do so.
In the case-of Martin’s Lessee v. Hunter,
Now; I do not insist on the exercise of the federal power to the extent as here laid down. I go no farther than to say, tha.t where the Constitution' imposes a positive duty on a state or- its officers to surrender fugitives, that Congress may prescribe the mode of proof, and the duty of the state officers.
This power may be resisted by a state, and there is no means •pf coercing it. In this view the power may be considered an important one. So the Supreme Court of a state may refuse to certify its. record on a writ of error to the. Supreme Court of the Union, under the twenty-fifth section of the judiciary act. • But resistance tú a constitutional authority-by any of the state functionaries, should not be anticipated; and if made, the federal government may rely upon its own agency in giving effect to the laws.
I come now to a most delicate and important inquiry in this case, and that is, whether the claimant of a fugitive, from, labour may seize and remove him by force out of the state in which he may be found, in .defiance óf its laws. I refer not to-laws which are in conflict with the Constitution, or the act of 17,93. Such state laws, I have already .said, are void. But I have reference to those laws WhicfU regulate the police of the state, maintain.the peace'of its citizens, and preserve its territory and jurisdiction from acts- of violence.
About the time of the adoption of the Constitution, a coloured man. was seized by several persons in the state of Pennsylvania, and forcibly removed out of it, with the intent, as charged, to enslave him. This act was then, as it is now, a criminal offence by the law .of Pennsylvania. Certain persons were indipted for this offence, and in the year 1791, the Governor of Pennsylvania demanded, of the Governor of Virginia, the persons indicted; as fugitives from justice.
The Governor of Virginia submitted the case to the attorney-general of that state, who decided, that the offence charged in the indictment was not,, such, a crime as- under the "Constitution required á surrender. He also. held/“ that control over the persons charged ought pot to. be acquired by any force not specified and. delegated by positive law.” The Governor of Virginia refused-
It is riot unworthy of remark; that á controversy on this. subject should first have'arisen after the adoption of--the Constitution, in Pennsylvania; and that after a lapse pf more than half a century, a controversy involving a similar act of violence should-he brought before this Court, for the first time,'from the same state
Both the' Constitution and the act of1793,j require the fugitive from labour to be'delivered up on claim being' made; by theparty of his agent, to whom the service is due'. • Not that a suit -should be regularly instituted. ' The proceeding authorized'by the law is summary and informal. Thte.fugitive is seized, by the'cla'imant, and taken before a judge or magistrate .within the state, and' on proof, parol or written, that he oWes labour to the-claimant, it is made the duty of .the judge or magistrate to give the- certificate, which authorizes the' removal of the. fugitive to- the state 'from whence he.absconded.
■ The'counsel inquire of whom the claim shall be made.: And they represent that tpe fugitive, being at large in the -state, is inf he. custody of no one, nor under the protection of--the state ;', so that the claim cannot be made, and conseqhently that the claimant may seize the fugitive, and rerhove him- out of the state.
.A perusal of .the act of Congress obviates this difficulty, and the consequence which is represented as growing out of it.
The apt is framed to .meet the supposed case.’ The.-fugitive is presümed-to be at large,:for- the claimant is' authorized to seize him. After seizure', he is in custody;’ before.it, he was riot. And the claimant js required to take him before a judicial officer of the state; and it is .before such officer -his claim is to be made.
To, suppose, that' the claim is not to be made, and indeed carinot be Unless the fugitive be m the custody or possession of some public officer or individual, is .to disregard trie-letter and spirit of the act of 179"3. There is no act in the., statute book more pre
■Such a proceeding can receive no sanction under the act, for it is in express violation of it. The claimant having seized the fugitive, is required by the act to take him before a federal judge within the- state, or a state magistrate within the county, city, or town corpqrate, within which the seizure was made. Now, can there be any pretence that after the seizure under the statute, the claimant may .disregard the other express provision of it, by taking the fugitive without claim out of the state. But it is said, the master may seize his slave wherever he finds him, if by doing so he does not violate the public peace ; that the relation of master and slave is not affected by the laws of the state, to which the slave may have fled, and where he is found.
If the master has aright to seize and remove the slave without claim, he can commit ho breach of the peace by using all the force necessary to accomplish his object.
It is admitted that the rights of the master, so far as regards the services of the slave, are not impaired by this change ; but the mode of asserting them, in my opinion, is essentially modified. In the state where the service is due, the master needs no other law than the law of force to control the action of the slave. But can this law be applied by the master in a state which makes the act unlawful ?
Can the master seize his slave and remove him out of the state in disregard of its laws, as he might take his horse which is running at large ? This ground is taken in the argument. Is' there no difference in principle in these cases ?
The slave, as a sensible and human being, is subject to the local authority into whatsoe er jurisdiction he may go. He is answerable'under the laws for his acts, and he may claim their' protection. The state may protect him against all the world except the claim of his master. Should any one commit lawless violence on the slave, the offender may unquestionably be punished ; and should the slftve' commit murder, he may be detained and punished fox it by the state, in disregaid of the claim, of - the
In a state where slavery is allowed, every coloured person is presumed to be a slave; and on the same principle, in a nonslaveholding state, every person is presumed to be free without regard to colour. On this principle, the states, both slaveholding and non-slaveholding, legislate. The latter may prohibit, as Pennsylvania has done under a certain penalty, the forcible removal of a coloured person , out of the state. Is such law in conflict with the act of 1793 ?
The act of 1793 authorizes a forcible seizure of the slave by the master, not to take him out of the state, but to take him before some judicial officer within it. The act of Pennsylvania punishes a forcible removal of a coloured person out of the state. Now, here is no conflict between the law of' the state and the law of Congress. The execution of neither law can, by any just interpretation, i'n my opinion, interfere with the execution of the other. The laws in this respect stand in harmony with each other.
It is very clear that no power to seize and forcibly remove the slave without claim is given by the act of Congress. Can it be exercised under the Constitution? Congress have legislated on the constitutional power, and have, directed the mode in which it shall be- executed. The act, it is admitted, covers the whole ground; and that it is constitutional there seems to be no reason to doubt. Now, under such circumstances, can the provisions of the act be disregarded, and an assumed power set up under the Constitution ? This is believed to be wholly inadmissible by any known rule of construction.
The terms of the Constitution are ge tal, and like many other powers in that instrument require legislation. In the language of this Court in Martin v. Hunter, T-Wheat. Rep. 304, “the powers of the Constitution are expressed in general terms, leaving to the legislature, from time .to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.”
This, Congress have done by the act of 1793. It gives a summary and effectual mode of - red ess te the master, and is he not
This-would be a most singhlar constitutional provision. It would extend’,'the remedy by recaption into another sovereignty, which.is sanctioned neither by t-he-.common law nor. the law of nations. If .the, master may lawfully - seize and- remove the fugitive out of. the state where he may. be found, without an exhibitioii. of his claim, he may'lawfully resist any force, physical or legal, ■ which the statp, or the citizens of the state, may interpose.
To hold that he must exhibit, his claim in case of resistance, is' to abandon ,the ground assumed. He is engaged, it is said, in.the lawful prosecution of aconstituiional right. All resistance then, by whomsoever made, or in whatsoever form,“must be illegal. Under such circumstances the master needs no proof of his claim,, though he.might stand in need of additional -physical power.. Having appealed to this power., he has only to collect a sufficient force to put .down all resistance and .attain 'his. object. Having done this, he not only stands acquitted and justified; but he has recourse for any injury he may have received in overcoming tlie.. resistance.
.If this be a constitutional remedy,-'it may^not always be a peaceful one. But if it be a rightful remedy, that it may be car-' ried to thi,s extent, no one can deny! And if it,may be exercised without claim of right, wfiy may.it not be; resorted to after the’ unfavourable decision of the judge or magistrate? .This-wouldlihfit the necessity of-the exhibition of proof by. the master to the single case where the'slave Was in the'actual' custody of somp public officer. How can, this be the true construction of the Constitution ?• • That such-a procedure -js not sanctioned by the act of 1793 has b^en shown. That,act was passed expressly to guard against acts of forcp and violence.
. I cáfinot perceive how any one can doubt that the remedy.
The slave is found in a state where every man, black of white, is presumed to be free; and this state, to preserve the peace of its citizens, and its soil and jurisdiction from acts of violence, has prohibited the forcible abduction of persons of colour. Does this law conflict with the Constitution? It .clearly does not,- in its terms.'
The conflict i~ supposed to arise out of the prohibition against the forcible removal of persons of colour generally, which may include fugitive slaves. Prima, facie it does not include slaves, as every man within the state is presumed to be free, and there is no provision in the act which embraces slaves. Its language-, clearly shorvs, that it was- designed -to protect free .persons of colour Avithin the state. But'it is admitted, there-is no exception as to the forcible removal of slaves. And here the important and most delicate question arises between- the- power of the state, and. the assumed but not sanctioned -power of the federal government.
No conflict can arise between the act of Congress arid this state law. The conflict- can onlv. arise between the forcible acts -of the master and the' lavv of the state! The- piaster- exhibits no proof of' right to the services - of the. slave, but' seizes him, -and is about to remove him by force. I - speak. only of the force exerted on the-slave. The laW;.of the state presumes-him to. be free, and prohibits his removal'. 'Now, which shall,give ay, the master or the state ? .The law of the state does, in no case, discharge,-in '.the-language of the Constitution; the slave from the service of his master.
.It is a most important police regulation. And if the master violate it, is he not amenable ? The offence consists in the abduction of a. persón of.colour. -And this-is attempted' to be, juSti-. fled upon the. simple ground that-the slave is property. That a
The seizure which the master has a right to make under the act of Congress is for the purpose of- taking the slave before an officer; His possession of the slave within the state, under- this seizure, is qualified and limited to the subject for which it was made.
The certificate of right to the service of the slave is undoubtedly for the protection of the master; but it authorizes the removal. of the slave out of the state where he was found, to • the state from whence he fled. And under the Constitution this authority is valid in all the states.
The important point is, shall the presumption of right set up by the master, unsústained by any proof, or the presumption which arises from the laws and institutions of the state, prevail.. This is the true issue. The sovereignty of the state is .on one side, and the asserted interest of the master on the other. That interest is protected by the páramo'unt law, and a special, a summary, and an effectual mode of redress is-given. But this mode is not pursued, and the remedy is taken into his own hands by the master.
The presumption of the state that the coloured person is free may be erroneous in fact; and if so; there can be no difficulty-in proving it. But may not the assertion of the master be erroneous also; and if so, how'is his act of force to be remedied ? The co-loured person .is' taken, and forcibly conveyed beyond the jurisdiction of the state. This force, not being authorized by the act of Congress nor by the Constitution, may be prohibited b.y the state. As the act covers the whole power in the Constitution, and carries out, by special enactments, its provisions, we are, in my judgment,
This viéw respects the rights of the master and the rights of the. state. It neither jeopards nor retards the reclámation of the slave. It removes all state action prejudicial to the rights of the blaster; and recognises in the state a power to guard and protect its own jurisdiction, and the peace of its citizens.
It appears, in the case under consideration, that the state magistrate before whom the fugitive was brought refused to act. In my judgment he was bound to perform the duty required of him by a law paramount to any act, on the same subject, in his own state. But this refusal does not justify the subsequént action of the claimant. He should have taken the fugitive before a judge of the United States, two of whom resided within the state.
It may be. doubted whether the first section ofthe act of Pennsylvania under which the defendant was indicted, by a fair construction applies .to .the case under consideration. The decision of the Supreme Court of that state was pro forma, and, of course, without examination. Indeed, I suppose, the case has been made up merely to bring the question before this Court. My opinion, therefore, does not rest so much.upon the particular law of Pennsylvania, as upon the inherent and sovereign power'of a state, to protect its jurisdiction and the peace of its citizens, in any and every mode which its" discretion shall’ dictate, which shall not conflict with a defined power of the federal government.
This cause came on to be heard on the transcript' of the record- from the Supreme Court of Pennsylvania, and was argued by counsel; on consideration whereof, It is the opinion Of this Court, that the. act of the Commonwealth of Pennsylvania, ..upon which the indictment in this case is founded, is repugnant to the Constitution and laws of the United States; and, .therefore, void; and that the judgment of the Supreme Court of. Pennsylvania upon the special verdict found in the case, ought to have been that the said Edward Prigg was not guilty. • It is, therefore, ordéred and adjudged by this Court, that the judgment of the said Supreme Court of Pennsylvania be, and the same is, hereby, re
Concurrence Opinion
Concurred with the Court in reversing the judgment of the Supreme Court of Pennsylvania, on the ground that the act of the legislature was unconstitutional; inasmuch as the slavery of the person removed was admitted, the removal could not be kidnapping. . But he dissented from the principles laid down by the Court as the grounds of their opinion.