Prigg v. Pennsylvania
[Syllabus from pages 539-542 intentionally omitted]
ERROR to the Supreme Court of Pennsylvania. The defendant in error, Edward Prigg, with Nathan S. Bemis, Jacob Forward and Stephen Lewis, Jr., were indicted by the grand jury of York county, Pennsylvania, for that, on the first day of April 1837, upon a certain negro woman, named Margaret Morgan, with force and violence, they made an assault, and with force and violence, feloniously did take and carry her away from the county of York, within the commonwealth of Pennsylvania, to the state of Maryland, with a design and intention there to sell and dispose of the said Margaret Morgan, as and for a slave and servant for life. Edward Prigg, one of the defendants, having been arraigned, pleaded not guilty. The cause was tried before the court of quarter sessions of York county, on the 22d day of May 1839; and the jury found the following special verdict:
'That at a session of the general assembly of the commonwealth of Pennsylvania, holden at the city of Philadelphia, on the first day of March 1780, the following law was passed and enacted, to wit, 'An act for the gradual abolition of slavery:
§ 3. All persons, as well negroes and mulattoes, as others, who shall be born within this state, shall not be deemed and considered as servants for life or slaves; and all servitude for life, or slavery of children, in consequence of slavery of their mothers, in the case of all children born within this state, from and after the passing of this act as aforesaid, shall be and hereby is utterly taken away, extinguished and for ever abolished.
§ 4. Provided always, that every negro and mulatto child, born within this state, after the passing of this act as aforesaid (who would, in case this act had not been made, have been born a servant for years, or life, or a slave), shall be deemed to be, and shall be, by virtue of this act, the servant of such persons, or her or his assigns, who would, in such case, have been entitled to like relief, in case he or she shall be evilly treated by his or her master or mistress, and to like freedom dues and other privileges, as servants bound by indenture for four years are or may be entitled; unless the person to whom the service of any such child shall belong, shall abandon his or her claim to the same; in which case the overseers of the poor of the city, or township or district, respectively, where such child shall be so abandoned, shall, by indenture, bind out every child so abandoned, as an apprentice, for a time not exceeding the age hereinbefore limited for the service of such children.
§ 5. Every person who is, or shall be, the owner of any negro or mulatto slave or servants for life, or till the age of thirty-one years, now within this state, or his lawful attorney, shall, on or before the first day of November next, deliver or cause to be delivered in writing to the clerk of the peace of the county, or to the clerk of the court of sessions of the city of Philadelphia, in which he or she shall respectively inhabit, the name and sirname, and occupation or profession, of such owner, and the name of the county and township, district or ward wherein he or she resideth; and also the name and names of any such slave and slaves, and servant and servants for life, and till the age of thirty-one years, within this state, who shall be such on the said first day of November next, from all other persons; which particulars shall, by said clerk of the sessions and clerk of the said city court, be entered in books to be provided for that purpose by the said clerks; and no negro or mulatto now within this state shall, from and after the said first day of November, be deemed a slave or servant for life, or till the age of thirty-one years, unless his or her name shall be entered as aforesaid on such records, except such negro or mulatto slaves and servants as are hereinafter excepted; the said clerk to be entitled to a fee of two dollars for each slave or servant so entered as aforesaid, from the treasury of the county, to be sallowed to him in his accounts.
§ 6. Provided always, that any person in whom the ownership or right to the service of any negro or mulatto shall be vested at the passing of this act, other than such as are hereinbefore excepted, his or her heirs, executors, administrators and assigns, and all and every of them, severally, shall be liable to the overseers of the poor of the city, township or district to which any such negro or mulatto shall become chargeable, for such necessary expense, with costs of suit thereon, as such overseers may be put to, through the neglect of the owner, master or mistress of such negro or mulatto, notwithstanding the name and other descriptions of such negro or mulatto shall not be entered and recorded as aforesaid, unless his or her master or owner shall, before such slave or servant obtain his or her twenty-eighth year, execute and record in the proper county, a deed or instrument securing to such slave or servant his or her freedom.
§ 8. In all cases wherein sentence of death shall be pronounced against a slave, the jury before whom he or she shall be tried, shall appraise and declare the value of such slave; and in case such sentence be executed, the court shall make an order on the state treasurer, payable to the owner for the same, and for the costs of prosecution; but in case of remission or mitigation, for the costs only.
§ 9. The reward for taking up runaway and absconding negro and mulatto slaves and servants, and the penalties for enticing away, dealing with, or harboring, concealing or employing negro and mulatto slaves and servants, shall be the same, and shall be recovered in like manner, as in case of servants bound for four years.
§ 10. No man or woman, of any nation or color, except the negroes or mulattoes who shall be registered as aforesaid, shall, at any time hereafter, be deemed adjudged or holden, within the territories of this commonwealth as slaves or servants for life, but as free-men and free-women; except the domestic slaves attending upon delegates in congress from the other American states, foreign ministers and consuls, and persons passing through or sojourning in this state, and not becoming resident therein, and seamen employed in ships not belonging to any inhabitant of this state, nor employed in any ship owned by any such inhabitant; provided, such domestic slaves shall not be alienated or sold to any inhabitant, nor (except in the case of members of congress, foreign ministers and consuls) retained in this state longer than six months.
§ 12. And whereas, attempts may be made to evade this act, by introducing into this state negroes and mulattoes bound by covenant to serve for long and unreasonable terms of years, if the same be not prevented: Therefore—
§ 13. No covenant of personal servitude or apprenticeship whatsoever, shall be valid or binding on a negro or mulatto, for a longer time than seven years, unless such servant apprentice were, at the commencement of such servitude or apprenticeship, under the age of twenty-one years; in which case, such negro or mulatto may be holden as a servant or apprentice, respectively, according to the covenant, as the case shall be, until he or she shall attain the age of twenty-eight years, but no longer.
§ 14. That this act, or anything herein contained, shall not give any relief or shelter to any absconding or runaway negro or mulatto slave or servant, who has absconded himself, or shall abscond himself, from his or her owner, master or mistress, residing in any other state or country; but such owner, master or mistress, shall have like right and aid to demand, claim and take away his slave or servant, as he might have had, in case this act had not been made: and that all negro and mulatto slaves, now owned and heretofore resident in other states, who have absconded themselves, or been clandestinely carried away, or who may be employed abroad as seamen, and have not absconded or been brought back to their owners, masters or mistresses before the passing of this act, may, within five years, be registered as effectually as is ordered by this act concerning those who are not within this state, on producing such slave before any two justices of the peace, and satisfying the said justices, by due proof, of his former residence, absconding, running away or absence of such slaves as aforesaid, who thereupon shall direct and order the said slaves to be entered on the record as aforesaid.
And the jurors further found, that at a session of the general assembly of the commonwealth of Pennsylvania, holden at the city of Philadelphia, on the 29th day of March 1788, the following law was passed and enacted, 'An act to explain and amend 'an act for the gradual abolition of slavery,"
§ 1. For preventing many evils and abuses arising from ill-disposed persons availing themselves of certain defects in the act for the gradual abolition of slavery, passed on the first day of March, in the year of our Lord 1780, be it enacted:--
§ 2. The exception contained in the tenth section of the act of the first of March 1780, relative to domestic slaves, attending upon persons passing through or sojourning in this state, and not becoming resident therein, shall not be deemed or taken to extend to the slaves of such persons as are inhabitants of, or resident in, this state, or who shall come here, with an intention to settle and reside; but all and every slave or slaves who shall be brought into this state, by persons inhabiting or residing therein, or intending to inhabit or reside therein, shall be immediately considered, deemed and taken to be free, to all intents and purposes.
§ 3. No negro or mulatto slave, or servant for term of years (except as in the last exception of the tenth section of the said act, is excepted), shall be removed out of this state, with the design and intention that the place of abode or residence of such slave or servant shall be thereby altered or changed, or with the design and intention that such slave or servant, if a female and pregnant, shall be detained and kept out of this state till her delivery of the child of which she is or shall be pregnant, or with the design and intention that such slave or servant shall be brought again into this state, after the expiration of six months from the time of such slave or servant having been first brought into this state, without his or her consent, if of full age, testified upon a private examination, before two justices of the peace of the city or county in which he or she shall reside, or being under the age of twenty-one years, without his or her consent, testified in manner aforesaid, and also without the consent of his or her parents, if any such there be, to be testified in like manner aforesaid, whereof the said justices, or one of them, shall make a record, and deliver to the said slave or servant a copy thereof, containing the name, age, condition and the place of abode of such slave or servant, the reason of such removal, and the place to which he or she is about to go; and if any person or persons whatsoever shall sell or dispose of any such slave or servant, to any person out of this state, or shall send or carry, or cause to be sent or carried, any such slave or servant, out of this state, for any of the purposes aforesaid, whereby such slave or servant would lose those benefits and privileges which by the laws of this state are secured to him or her, and shall not have obtained all such consent as by this act is required, testified in the manner before mentioned, every such person and persons, his and their aiders and abettors, shall severally forfeit and pay, for every such offence, the sum of seventy-five pounds, to be recovered in any court of record, by an action of debt, bill, plaint or information, at the suit of any person who will sue for the same; one moiety thereof, when recovered, for the use of the plaintiff, the other moiety for the use of the poor of the city, township or place from which such slave or servant shall be taken and removed.
§ 4. All persons who now are, or hereafter shall be, possessed of any child or children, born after the first day of March 1780, who would, by the said act, be liable to serve till the age of twenty-eight years, shall on or before the first day of April 1789, or within six months next after the birth of any such child, deliver or cause to be delivered, in writing, to the clerk of the peace of the county, or the clerk of the court of record of the city of Philadelphia, in which they shall respectively inhabit, the name, sirname, and occupation or profession of such possessor, and of the county, township, district or ward in which they reside, and also the age (to the best of his or her knowledge), name and sex of every such child or children, under the pain and penalty of forfeiting and losing all right and title to every such child and children, and of him, her or them immediately becoming free; which said return or account in writing shall be verified by the oath or affirmation of the party, which the said clerks are hereby respectively authorized and required to administer, and the said clerks shall make and preserve records thereof, copies and extracts of which shall be good evidence in all courts of justice, when certified under their hands and seals of office; for which oath or affirmation, and entry or extract, the said clerks shall be respectivly entitled to one shilling and six-pence, and no more, to be paid by him or her, who shall so as aforesaid make such entry, or demand the extract aforesaid.
And whereas, it has been represented to this house, that vessels have been fitted out and equipped in this port, for the iniquitous purpose of receiving and transporting the natives of Africa to places where they are held in bondage, and it is just and proper to discourage, as far as possible, such proceedings in future:
§ 5. If any person or persons shall build, fit, equip, man or otherwise prepare any such ship or vessel, within any port of this state, or shall cause any ship or other vessel to sail from any port of this state, for the purpose of carrying on a trade or traffic in slaves, to, from or between Europe, Asia, Africa or America, or any place or countries whatsoever, or of transporting slaves to or from one port or place to another, in any part or parts of the world, such ship or vessel, her tackle, furniture, apparel and other appurtenances, shall be forfeited to the commonwealth, and shall be liable to be seized and prosecuted by any officer of the customs, or other person, by information in rem, in the supreme court, or in the county court of common pleas for the county wherein such seizure shall be made: whereupon, such proceedings shall be had, both unto and after judgment, as in and by the impost laws of this commonwealth in case of seizure is directed. And moreover, all and every person and persons so building, fitting out, manning, equipping or otherwise preparing or sending away any ship or vessel, knowing or intending that the same shall be employed in such trade or business, contrary to the true intent and meaning of this act, or in any wise aiding or abetting therein, shall severally forfeit and pay the sum of one thousand pounds, one moiety thereof to the use of the commonwealth, and the other moiety thereof to the use of him or her who will sue for the same, by action, debt, bill, plaint or information.
And whereas, the practice of separating, which is too often exercised by the masters and mistresses of negro and mulatto slaves, or servants for term of years, in separating husbands and wives, and parents and children, requires to be checked, so far as the same may be done without prejudice to such masters or mistresses:
§ 6. If any ower or possessor of any negro, mulatto slave or slaves, or servant or servants for term of years, shall, from and after the first day of July next, separate or remove, or cause to be separated or removed, a husband from his wife, or wife from her husband, a child from his or her parents, or a parent from a child, or any or either of the descriptions aforesaid, to a greater distance than ten miles, with the design and intention of changing the habitation or place of abode of such husband or wife, parent or child, unless such child shall be above the age of four years, without the consent of such slave or servant for life or years shall have been obtained and testified in the manner hereinbefore described, such person or persons shall severally forfeit and pay the sum of fifty pounds, with costs of suit, for every such offence, to be recovered by action of debt, bill, plaint or information, in the supreme court or in any court of common pleas, at the suit of any person who will sue for the same; one moiety thereof, when recovered, for the use of the plaintiffs, the other moiety for the use of the poor of the city, township, or place from which said husband or wife, parent or child, shall have been taken and removed.
And the jurors further found, that at a session of the general assembly of the commonwealth of Pennsylvania, holden at Harrisburg, on the 25th day of March 1826, the following law was passed, 'An act to give effect to the provisions of the constitution of the United States relative to fugitives from labor, for the protection of free people of color, and prevent kidnapping.'
§ 1. If any person or persons shall, from and after the passing of this act, by force and violence, take and carry 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 so to take, carry away or seduce, any negro or mulatto, from any part or parts of this commonwealth, to any other place or places whatsoever, 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, in any court of this commonwealth having competent jurisdiction, be deemed guilty of a felony, and shall forfeit and pay, at the discretion of the court passing the sentence, a sum not less than five hundred, nor more than one thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to this commonwealth; and moreover, shall be sentenced to undergo a servitude for any term or terms not less than seven years, nor exceeding twenty-one years, and shall be confined and kept to hard labor, fed and clothed in the manner as is directed by the penal laws of this commonwealth for persons convicted of robbery.
§ 2. If any person or persons shall, hereafter, knowingly sell, transfer or assign, or shall, knowingly, purchase, take or transfer an assignment of any negro or mulatto, for the purpose of fraudulently removing, exporting or carrying said negro or mulatto out of this state, with the design or intent, by fraud or false pretences, of making him or her a slave or servant for life, or for any term whatsoever, every person so offending shall be deemed guilty of a felony, and on conviction thereof, shall forfeit and pay a fine of not less than five hundred dollars, nor more than two thousand dollars, one-half whereof shall be paid to the person or persons who shall prosecute for the same, and the other half to the commonwealth; and moreover, shall be sentenced, at the discretion of the court, to undergo a servitude for any term or time not less than seven years, nor exceeding twenty-one years, and shall be confined, kept to hard labor, fed and clothed in the same manner as is directed by the penal laws of this commonwealth for persons convicted of robbery.
§ 3. When a person held to labor or servitude in any of the United States, or in either of the territories thereof, under the laws thereof, shall escape into this commonwealth, the person to whom such labor or service is due, his or her duly authorized agent or attorney, constituted in writing, is hereby authorized to apply to any judge, justice of the peace or alderman, who, on such application, supported by the oath or affirmation of such claimant, or authorized agent or attorney as aforesaid, that the said fugitive hath escaped from his or her service, or from the service of the person for whom he is duly constituted agent or attorney, shall issue his warrant, under his hand and seal, and directed to the sheriff, or any constable of the proper city or county, authorizing and empowering said sheriff or constable, to arrest and seize the said fugitive, who shall be named in said warrant, and to bring said fugitive before a judge of the proper county, which said warrant shall be in the form or to the following effect:
'State of Pennsylvania, _____ county, ss.
The Commonwealth of Pennsylvania, to the sheriff or any constable of _____ county, greeting: Whereas, it appears by the oath, or solemn affirmation, of _____ _____, that _____ _____, was held to labor or service to _____ _____, of _____ county, in the state of _____, and the said _____ _____ hath escaped from the labor and service of the said _____ _____: You are therefore commanded, to arrest and seize the body of the said _____ _____, if he be found in your county, and bring him forthwith before the person issuing the warrant, if a judge (or if a justice of the peace or alderman) before a judge of the court of common pleas, or of the district court, as the case may be, of your proper county, or recorder of a city, so that the truth of the matter may be inquired into, and the said _____ _____ be dealt with as the constitution of the United States, and the laws of this commonwealth direct. Witness our said judge (or alderman, or justice, as the case may be), at this ___ day of _____, in the year of our Lord one thousand eight hundred and _____.
By virtue of such warrant the person named therein may be arrested by the proper sheriff or constable to whom the same shall be delivered, within the proper city or county.
§ 4. No judge, justice of the peace or alderman shall issue a warrant on the application of any agent or attorney, as provided in the said third section, unless the said agent or attorney shall, in addition to his own oath or affirmation, produce the affidavit of the claimant of the fugitive, taken before and certified by a justice of the peace or other magistrate authorized to administer oaths, in the state or territory in which such claimant shall reside, and accompanied by the certificate of the authority of such justice or other magistrate, to administer oaths, signed by the clerk or prothonotary, and authenticated by the seal of a court of record, in such state or territory; which affidavit shall state the said claimant's title to the service of such fugitive, and also the name, age and description of the person of such fugitive.
§ 5. It shall be the duty of any judge, justice of the peace or alderman, when he grants or issues any warrant under the provisions of the third section of this act, to make a fair record on his docket of the same, in which he shall enter the name and place of residence of the person on whose oath or affirmation the said warrant may be granted; and also, if an affidavit shall have been produced under the provisions of the fourth section of this act, the name and place of residence of the person making such affidavit, and the age and description of the person of the alleged fugitive contained in such affidavit, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the proper city or county; and any judge, justice of the peace or alderman who shall refuse or neglect to comply with the provisions of this section, shall be deemed guilty of a misdemeanor in office, and shall, on conviction thereof, be sentenced to pay, at the discretion of the court, any sum not exceeding one thousand dollars, one-half to the party prosecuting for the same, and the other half to the commonwealth. And any sheriff or constable, receiving and executing the said warrant, shall, wlthout unnecessary delay, carry the person arrested before the judge, according to the exigency of the warrant. And any sheriff or constable, who shall refuse or wilfully neglect so to do, shall, on conviction thereof, be sentenced to pay, at the discretion of the court, any sum not exceeding five hundred dollars, one-half to the party prosecuting for the same, and the other half to the commonwealth, or shall also be sentenced to imprisonment, at hard labor, for a time not exceeding six months, or both.
§ 6. The said fugitive from labor or service, when so arrested, shall be brought before a judge as aforesaid, and upon proof, to the satisfaction of such judge, that the person so seized or arrested doth, under the laws of the state or authority from which she or he fled from service or labor, to the person claiming him or her, it shall be the duty of such judge to give a certificate thereof to such claimant, his or her duly authorized agent or attorney, which shall be sufficient warrant for removing the said fugitive to the state or territory from which she or he fled: Provided, that the oath of the owner or owners, or other person interested, shall in no case be received in evidence before the judge, on the hearing of the case.
§ 7. When the fugitive shall be brought before the judge, agreeably to the provisions of this act, and either party allege and prove to the satisfaction of the said judge, that he or she is not prepared for trial, and have testimony material to the matter in controversy, that can be obtained in a reasonable time, it shall and may be lawful, unless security, satisfactory to the said judge, be given for the appearance of the said fugitive, on a day certain, to commit the said fugitive to the common jail for safe-keeping there to be detained at the expense of the owner, agent or attorney, for such time as the judge shall think reasonable and just, and to a day certain, when the said fugitive shall be brought before him by habeas corpus in the courthouse of the proper county, or in term-time, at the chamber of the said judge, for final hearing and adjudication: Provided, that if the adjournment of the hearing be requested by the claimant, his agent or attorney, such adjournment shall not be granted, unless the said claimant, his agent or attorney, shall give security, satisfactory to the judge, to appear and prosecute his claim, on the day to which the hearing shall be adjourned: Provided, that on the hearing last mentioned, if the judge committing the said fugitive, or taking the security as aforesaid, should be absent, sick, or otherwise unable to attend, it shall be the duty of either of the other judges, on notice given, to attend to the said hearing, and to decide thereon.
§ 8. The officer which may or shall be employed in the execution of the duties of this act shall be allowed the same fees for service of process that sheriffs within this commonwealth are now allowed for serving process in criminal cases, and two dollars and fifty cents per day for each and every day necessarily spent in performing the duties enjoined on them by this acts to be paid by the owner, agent or attorney, immediately on the performance of the duties aforesaid.
§ 9. No alderman or justice of the peace of this commonwealth shall have jurisdiction or take cognisance of the case of any fugitive from labor from any of the United States or territories, under a certain act of congress, passed on the tenth day of February 1793, entitled 'an act respecting fugitives from justice, and persons escaping from the service of their masters;' nor shall any alderman or justice of the peace of this commonwealth issue or grant any certificate or warrant of removal of any such fugitive from labor as aforesaid, except in the manner and to the effect provided in the third section of this act, upon the application, affidavit or testimony of any person or persons whatsoever, under the said act of congress, or under any other law, authority or act of the congress of the United States; and if any alderman or justice of the peace of this commonwealth shall, contrary to the provision of this act, take cognisance or jurisdiction of the case of any such fugitive as aforesaid, except in the manner hereinbefore provided, or shall grant or issue any certificate or warrant of removal as aforesaid, then and in either case, he shall be deemed guilty of a misdemeanor in office, and shall, on conviction thereof, be sentenced to pay, at the discretion of the court, any sum not less than five hundred dollars, nor exceeding one thousand dollars, one-half thereof, to the party prosecuting for the same, and the other half to the use of the commonwealth.
§ 10. It shall be the duty of the judge or recorder of any court of record in this commonwealth, when he grants or issues any certificate or warrant of removal of any negro or mulatto claimed to be a fugitive from labor to the state or territory from which he or she fled, in pursuance of an act of congress passed the 12th day of February 1793, entitled 'an act respecting fugitives from justice and persons escaping from the service of their masters,' and of this act, to make a fair record of the same, in which he shall enter the age, name, sex and general description of the person of the negro or mulatto for whom he shall grant such certificate or warrant of removal, together with the evidence and the name of the places of residence of the witnesses, and the party claiming such negro or mulatto, and shall, within ten days thereafter, file a certified copy thereof in the office of the clerk of the court of general quarter sessions of the peace, or mayor's court of the city or county in which he may reside.
§ 11. Nothing in this act contained shall be construed as a repeal or alteration of any part of an act of assembly passed the first day of March, 1780, entitled 'an act for the gradual abolition of slavery,' except the eleventh section of said act, which is hereby repealed and supplied nor of any part of an act of assembly passed on the 28th day of March 1788, entitled 'an act to explain and amend an act for the gradual abolition of slavery,' except the 7th section of this last-mentioned act, which is hereby supplied and repealed.
And the jurors further found, that the negro woman, Margaret Morgan, in the within indictment mentioned, came into the state of Pennsylvania from the state of Maryland, some time in the year 1832; that at that time, and for a long period before that time, she was a slave for life, held to labor, and owing service or labor, under and according to the laws of the said state of Maryland, one of the United States, to a certain Margaret Ashmore, a citizen of the state of Maryland, residing in Harford county; and that the said negro woman, Margaret Morgan, escaped and fled from the state of Maryland, without the knowledge and consent of the said Margaret Ashmore; that in the month of February 1837, the within-named defendant, Edward Prigg, was duly and legally constituted and appointed by the said Margaret Ashmore, her agent or attorney, to seize and arrest the said negro woman, Margaret Morgan, as a fugitive from labor, and to remove, take and carry her from this state into the state of Maryland, and there deliver her to the said Margaret Ashmore; that as such agent or attorney, the said Edward Prigg, afterwards, and in the same month of February 1837, before a certain Thomas Henderson, Esquire, then being a justice of the peace in and for the county of York, in this state, made oath that the said negro woman, Margaret Morgan, had fled and escaped from the state of Maryland, owing service or labor for life, under the laws thereofTo the said Margaret Ashmore; that the said Thomas Henderson, so being such justice of the peace as aforesaid, thereupon issued his warrant, directed to one William McCleary, then and there being a regularly appointed constable in and for York county, commanding him to take the said negro woman, Margaret Morgan, and her children, and bring them before the said Thomas Henderson, or some other justice of the peace for said county; that the said McCleary, in obedience to said warrant, did accordingly take and apprehend the said negro woman, Margaret Morgan, and her children, in York county aforesaid, and did bring her and them before the said Thomas Henderson; that the said Henderson thereupon refused to take further cognisance of said case, and that the said Prigg afterwards, and without complying with the provisions of the said act of the general assembly of the commonwealth of Pennsylvania, passed the 25th of March 1826, entitled 'an act to give effect to the provisions of the constitution of the United States relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping,' did take, remove and carry away the said negro woman, Margaret Morgan, and her children, mentioned in said warrant, out of this state, into the state of Maryland, and did there deliver the said woman and children into the custody and possession of the said Margaret Ashmore. And further say, that one of the said children so taken, removed and carried away, was born in this state, more than one year after the said negro woman, Margaret Morgan, had fled and escaped from the state of Maryland as aforesaid.
But whether or not, upon the whole matter aforesaid, by the jurors aforesaid in form aforesaid found, the said Edward Prigg be guilty in manner and form as he stands indicted, the jurors aforesaid are altogether ignorant, and therefore, pray the advice of the court; and if, upon the whole matter aforesaid, it shall seem to the said court, that the said Edward Prigg is guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is guilty in manner and form as he stands indicted. But if, upon the whole matter aforesaid, it shall seem to the said court, that the said Edward Prigg is not guilty, then the jurors aforesaid, upon their oaths aforesaid, say that the said Edward Prigg is not guilty in manner and form as he stands indicted.
This special verdict was, under an agreement between Messrs. Meredith and Nelson, counsel for Edward Prigg, and Mr. Johnson, Attorney-General of Pennsylvania, taken under the provision of an act of the assembly of Pennsylvania, passed 22d of May 1839; and by agreement, the court gave judgment against Edward Prigg, on the finding of the jury and the indictment. The defendant prosecuted a writ of error to the supreme court of Pennsylvania, to May term 1840. On the 23d May 1840, the following errors were assigned before the court, by Mr. Meredith and Mr. Nelson, who represented the state of Maryland, as well as the defendant. The plaintiff in error suggests to the supreme court here, that the judgment rendered in the court of oyer and terminer or York county in this case, should be reversed for the reason following, viz: That the act of assembly of the commonwealth of Pennsylvania, set out in the record in the said cause, is repugnant to the provisions of the constitution of the United States, and is therefore void. The supreme court affirmed, pro forma, the judgment of the court of oyer and terminer; and the defendant, Edward Prigg, prosecuted this writ of error.
The case was argued, for the plaintiff in error, by Meredith and Nelson, under authority to appear in the case for the state of Maryland; and by Johnson, Attorney-General of Pennsylvania, and Hambly, for the commonwealth of Pennsylvania.
The arguments of all the counsel, with the exception of that of Mr. Nelson (which has not been received), have been by them, respectively, furnished to the reporter.
The counsel for the plaintiff in error contended:-That the law of Pennsylvania, on which the indictment of the defendant founded, was unconstitutional:-1. Because congress has the exclusive power of legislation upon the subject-matter of the said constitutional provision, which power has been exercised by the act of the 12th February 1793. 2. That if this power is not exclusive, still the concurrent power of the state legislatures is suspended, by the actual exercise of the federal power. 3. That if not suspended, still the statute of Pennsylvania, in all its provisions applicable to this case, is in direct collision with the act of congress; it is, therefore, unconstitutional and void.
Meredith, for the state of Maryland, interposing in behalf of the plaintiff in error, adverted to the special act of the legislature of Pennsylvania, of the 22d of May 1839, as the result of a negotiation between that state and Maryland, the object of which was, to settle, by the authoritative decision of the supreme court of the Union, the power of state legislation, over that provision of the constitution of the United States which relates to fugitive slaves. He then briefly stated the facts of the particular case, as found by the special verdict; and referring to the provisions of the act of congress of the 12th of February 1793, respecting fugitives from justice, and persons escaping from the service of their masters, and to the several sections of the Pennsylvania law of the 25th of March 1826, which have given rise to the controversy between the two states, he remarked, that the validity of this law depended entirely upon the constitutionality of the act of congress. If that act was constitutionally passed, he argued, that it was wholly immaterial to inquire, whether it was passed in the exercise of an exclusive or of a concurrent power of legislation; because, in either case, the conclusion would be the same. The Pennsylvania law must be declared inoperative and void, and the judgment of her courts, which he was about to examine, must necessarily be reversed.
If this should appear to be a proper view of the question presented by the record; if it depended solely upon the constitutionality of the act of congress; the whole matter, as he believed, would be found to lie within very narrow limits. But, undoubtedly, the cause itself, looking to the consequences of its decision by the tribunal he addressed, was one of deep and prevading interest. It involved matters of high concernment, not only to the two sovereign states, which stood before the court as the immediate parties to the controversy; but to those other states of the Union, which, with reference to the questions at issue, occupied the same relative position. Indeed, it would, perhaps, be not too much to say, that the case was one of vital interest to the peace and perpetuity of the Union itself. For he believed, that to the interference of state legislation, might justly be ascribed much of that exasperation of public sentiment, which unhappily prevailed upon a subject that seemed every day to assume a more malignant and threatening aspect. It was fit, therefore, that such a cause should receive not only a careful, but a thorough examination, before it was finally passed upon by the conclusive judgment of the court.
That he might render what assistance was in his power to this end, he proposed to consider the case, with a view of maintaining the three following propositions: 1. That congress has the exclusive power of legislation upon the subject-matter of the constitutional provision in question. 2. That if the power is not exclusive, still, from its very nature, the concurrent power of the state legislatures is suspended by the actual exercise of the federal power. 3. That if the power is not suspended over the whole subject-matter of the provision, still it cannot be constitutionally exercised, so as to conflict with federal legislation; and consequently, that the law of Pennsylvania, so far as it was applied upon the indictment to the case of the plaintiff in error, is void and inoperative; because its provisions are in direct collision with those of the act of congress.
Before proceeding to discuss these propositions, he observed, that there was a preliminary inquiry on which it would be proper to bestow a brief attention. And that was, whether this constitutional provision required legislation; whether proprio vigore, it was not sufficient of itself, and by itself, to effectuate the object it contemplated. He did not, it was true, anticipate such a construction from the learned counsel for the state of Pennsylvania; for, if successfully maintained, it would be fatal to their case. Because it was clear, beyond all doubt, that if the legislation of congress is inhibited, on the ground that the constitution neither intends nor requires legislative regulation, the same reason must necessarily exclude the legislation of the states; and therefore, in reference to the present case, if the constitution effects its own purposes, by its own unassisted strength, the law of Pennsylvania which professes by its title 'to give effect to the provisions of the constitution of the United States, relative to fugitives from labor,' is at best a mere work of legislative supererogation, wholly futile and inoperative. It was not, therefore, he said, in its direct bearing upon the case, that he deemed the inquiry important; but because, elsewhere, in legislative assemblies, as well as in judicial forums, this construction had been so gravely insisted on as to deserve, at least, a passing notice.
A very brief examination of the provision in the constitution would, he thought, make it manifest, that it looks to subsequent legislative enactments. The first clause prohibits the states from passing any law, or adopting any regulation, by which fugitives from labor may be discharged from service. If the provision had stopped there, he admitted, that legislation would have been unnecessary; because a state law, in violation of so express a prohibition, would be ipso facto void; and the judicial power, extending to all cases arising under the constitution, would be unquestionably competent so to declare it. But the next clause of the provision is of a different character. It guaranties a right; and enjoins a duty; it declares, that the fugitive shall be delivered up, on claim, to the party to whom his service or labor may be due. Here, then, are two acts to be done. A claim is to be made; but the mode in which it is to be made, and the forms to be observed in making it, are not provided for. Again, a delivery is required; but from whom, and in what manner, and on what condition, the constitution does not prescribe. Regulations upon these points were indispensable to effectuate the object, and they were left to legislative enactments. And very properly so, because it is the office of a written constitution to establish general principles only, leaving them to be carried out by future legislation.
Mr. Meredith then adverted to the history and origin of the act of congress, of the 12th of February 1793, as the strongest illustration of the necessity of such legislation; and for this purpose referred to the first volume of State Papers, title Miscellaneous, page 38, et seq. It appeared from these documents, that in the year 1791, but two years after the organization of the government, the governor of Pennsylvania, under the analogous provision in the constitution relative to fugitives from justice, made a demand upon the governor of Virginia for the surrender and delivery of three persons, who had been indicted in Pennsylvania for kidnapping a negro, and carrying him into Virginia. The governor of Virginia hesitated upon the course to be pursued, and referred the matter to the attorney-general of that state, who advised that the demand ought not to be complied with.
In an elaborate opinion, to which the court was referred, he took several objections; and among them, the one most strenuously insisted on was, that the constitution had provided no means, and prescribed no method, for carrying the provision into effect. And that congress had not supplied such means by any law upon the subject. 'If,' he said, 'the delivery and removal in question can be effected, it must be under the authority only of the constitution of the United States. By that, the delivery is required, and the removal authorized; but the manner in which either shall be effected is not prescribed.' And again, 'the demand cannot be complied with by the governor of Virginia, without some additional provision by law, to enable him to do so.' The governor adopted this view of the subject, and expressed a hope, in communicating his refusal, that the case would furnish an inducement to congress to legislate at once upon the constitutional provision. Upon this refusal, the governor of Pennsylvania addressed a communication to the president of the United States, in which he says, 'As the attorney-general of Virginia has suggested another difficulty with respect to the mode of arresting persons as fugitives from justice, I have thought the present a proper occasion to bring the subject into your view; that by the interposition of the federal legislature, to whose consideration you may be pleased to submit it, such regulations may be established, as will in future obviate all doubt and embarrassment upon a constitutional question so delicate and important.' The president, it appears, laid these proceedings, with the opinion of the attorney-general of the United States, before congress; and the result was, that at the same session, the act, as it now stands upon the statute book, was reported by a committee; and was finally passed without opposition, on the 12th of February 1793.
The origin, then, of this act of congress, so strongly illustrative of the difficulties and embarrassments which would continually have arisen, if the article of the constitution referred to had been left to execute itself, dispenses with the necessity of all further argument upon this part of the subject. For it is scarcely necessary to remark, that the same difficulties and embarrassments would have arisen in reference to the provision regarding fugitives from labor, but for the enactments of the law of 1793. Indeed, in looking to both provisions, it would be found, that the necessity of legislation is obviously much less, in that which concerns fugitives from justice, than in the one now more immediately under consideration. The act of congress had never been questioned upon this ground, till the case of Jack v. Martin came before the court of errors of the state of New York. And even in that case, it was a mere intimation thrown out by the chancellor, but neither reasoned out, nor relied on. In every other case, it has been taken for granted, that legislation was necessary to effect. uate the object of the framers of the constitution. In Wright v. Deacon, 5 Serg. & Rawle 63, Chief Justice TILGHMAN, after quoting the provision, says, 'Here is the principle; the fugitive is to be delivered on claim of his master. But it required a law to regulate the manner in which this principle should be reduced to practice. It was necessary to establish some mode in which the claim should be made, and the fugitive be delivered up.' So also, in the case of the Commonwealth v. Griffith, 2 Pick. 11, PARKER, Chief Justice, says, 'The constitution does not prescribe the mode of reclaiming a slave, but leaves it to be determined by congress. It is very clear, that it was not intended that application should be made to the executive authority of the state.'
It being then indisputable, as the counsel thought, that the constitution looks to, and requires the aid of legislation to accomplish its purpose; he proceeded to argue, that this legislation was intended to be federal, and exclusive of state legislation. Why, he asked, was the provision introduced into the constitution? The colonial history of the country would show, that at one period, slavery was recognised as a legal institution in all the provinces; and that in all of them, a customary or conventional law prevailed, which conferred upon the owner of a fugitive slave the right to reclaim him, wherever he might be found. Before the close of the revolution, however, public opinion in the northern section of the country had materially changed, with regard to the policy and humanity of a system, that had, unfortunately, been fastened upon the colonies by the power of the mother country, without regard to their interests, and in definance of repeated protests. In 1780, Pennsylvania passed an act for the gradual abolition of slavery. In the same year, Massachusetts, by her Declaration of Rights, emancipated her slaves. And in a short time afterwards, these examples were followed by all, or nearly all of the New England States.
The institution, however, still continued to exist in the south. The clamate of that region, and the products of its soil, peculiarly adapted to this species of labor, had increased the slave population to so great a number, that, at the close of the revolution, the system had so interwined itself with the vital interests of private property, and with the maintenance of the public safety, as to render every project, even of gradual abolition, unsafe and impracticable. During the confederation, the southern states had sustained great inconveniences and loss, by the change that had been effected by the abolition laws of the northern states. The conventional or customary law was no longer observed. There was no provision upon the subject in the articles of confederation. In many of the northern states, no aid whatsoever would be allowed to the owners of fugitives slaves; and sometimes, indeed, they met with open resistance. 3 Story's Com. Const. 677. 'At present,' said Mr. Madison, in the Virginia convention, 2 Elliot's Deb. 335, 'if any slave elopes to any of those states where slaves are free, he becomes emancipated by their laws; for the laws of the states are uncharitable to one another in this respect.' And in the North Carolina convention, Mr. Iredell observed, that, 'in some of the northern states they have emancipated their slaves; if any of our slaves go there, they would, by the present laws, be entitled to their freedom, so that their masters could not get them again.'
It was during this conflict of law, of opinions and of interests between the northern and southern states, that the constitution embracing the provision in question was adopted. That provision, it is well known, was the result of mutual concessions in reference to the whole subject of slavery. On the one hand, the south agreed to confer upon congress the power to prohibit the importation of slaves after the year 1808; on the other, the north agreed to recognise and protect the existing institutions of the south; and for that very purpose, the clause in question was engrafted upon the constitution. The history of the times proves, that the south regarded and relied upon it, as an ample security to the owners of slave property. In the Virginia convention, in order no satisfy the minds of the people, that property of this description was abundantly protected, Governor Randolph held this language: 'Were it right to mention what passed in convention on the occasion, I might tell you, that the southern states-even South Carolina herself-conceived this property to be secured by these words.' Such, undoubtedly, was the confidence of the whole south, in the intention of the framers of the constitution. Such was their intention; and if so, it would seem to follow as a necessary consequence, that they meant to commit all legislative power over the subject exclusively to congress. The provision was manifestly intended to restore to the south the rights which the customary law had formerly extended to them, in common with the other colonies. Those rights had been disregarded by many of the states. And the apprehension must have forced itself upon every southern mind in the convention, that if the provision were left to be carried out by state legislation, it must prove but a precarious and inadequate protection. The provision, it is true, yielded the right of the owner to reclaim the fugitive, in whatever state he might have sought refuge; but if the power to regulate the mode in which this provision was to be carried into practical effect-if the power of enforcing its execution were left to the states, it could not but have been foreseen, that its whole purpose might be defeated. That the states might either legislate or not; in the one case, leaving the owner without legal means to vindicate his rights; in the other, embarrassing the prosecution of them, so as to delay or defeat them. In a word, to borrow the language of Chief Justice NELSON, whose whole argument upon this subject, in the case of Jack v. Martin, 12 Wend. 311, is entitled to the most attentive consideration of the court, 'the idea that the framers of the constitution intended to leave the legislation of this subject to the states, when the provision itself obviously sprung out of their fears of partial and unjust legislation by the states, in respect to it, cannot be admitted.' The confidence of the south, could only have reposed itself in congress, 'where the rights and interests of the different sections of the country, liable to be influenced by local and peculiar causes, would be regulated with an independent and impartial regard to all.'
If such was the intention of the framers of the constitution, the next inquiry is, whether it can be effectuated by the express or implied powers granted in that instrument. Congress has legislated upon the subject. But had it a constitutional authority to do so? Is the power thus exercised directly or impliedly given? In conducting this inquiry, it is proper, in the first place, to look to the collateral supports on which this act of congress rests for its validity. It was passed only four years after the adoption of the constitution. In that congress, were many of the leading and most distinguished men of the convention. The act was not passed hastily; for it was reported in 1791, and finally acted on in 1793. It was not passed without full consideration; for the Virginia case, and the different opinions, looking to federal or state legislation upon a kindred subject, were communicated to congress in 1791. Here, them, is a contemporaneous exposition of the constitutional provision, in the act itself, which has been always regarded by this court as of very high authority. A practical exposition, which, in the language of a distinguished commentator, approaches nearest to a judicial exposition. 1 Story's Com. Const. 392. It is, indeed, the very case he puts, having all the incidents of such an exposition. For the authority of congress to pass this law was determined after solemn consideration, pro re nata, upon a doubt raised-upon a lis mota, in the face of the nation-with a view to present action, and in the midst of jealous interests. To this source of collateral interpretation, it has been already said, this court is in the habit of looking with great respect. Among other cases, those of Martin v. Hunter's Lessee, 1 Wheat. 351, and Cohens v. State of Virginia, 6 Ibid. 418, may be referred to; for the purpose of showing that the court has resorted to contemporary construction to practical expositions of constitutional powers-in cases of much more doubt and difficulty than the present.
But further, from the period of its enactment, till very recently, this act of congress has been acquiesced in-practically applied in all the states, and regarded as containing judicious and salutary regulations in reference to both the subjects to which it relates. Ought a construction, time-honored as this is, to be lightly disturbed? This court has already answered the question. It has held a practice and acquiescence for a much shorter period, as fixing the construction of the constitution on a question of at least quite as much doubt. In the case of Stuart v. Laird, 1 Cranch 309, which involved the constitutionality of the provision in the judiciary act of 1789, giving to the judges of the supreme court circuit court powers, the court held this language: 'To this objection, which is of recent date, it is sufficient to observe, that practice and acquiescence under it for a period of several years, commencing with the organization of the judicial system, affords an irresistible answer, and has, indeed, fixed the construction. It is a contemporary interpretation of the most forcible nature. This practical exposition is too strong and obstinate to be shaken or controlled. Of course, the question is at rest, and ought not now to be disturbed.'
But in addition to contemporaneous exposition, and long acquiescence, we have the judicial decisions of the three great non-slave-holding states-Massachusetts, New York and Pennsylvania; in which the constitutionality of this act of congress was challenged and sustained. Commonwealth v. Griffith, 2 Pick. 11; Wright v. Deacon, 5 Serg. & Rawle 63; Jack v. Martin, 12 Wend. 312. So, too, in every case before the circuit court of the United States, the provisions of this act of congress have been judicially dealt with, without a question as to its constitutionality. It is submitted, therefore, that a very clear case of construction ought to be made out, to shake even the collateral supports on which this law rests.
But if the question can still be considered an open one, there is no difficulty in showing that the power of legislation in reference to this subject is granted by the constitution to congress. It would be strange, if it were not so; strange, if upon a subject of such intense and general interest, to which the mind of the convention had been so directly called, they had left their work unfinished-their purpose unaccomplished. It has been said, however, and may again be said, that the legislative power of the federal government is a limited one; that the constitution enumerates the cases in which it may be exercised, but that this is not among the number. That besides these enumerated cases, a general power is given to congress to pass all laws necessary and proper to carry into execution all powers granted by the constitution to the government, or any of its departments or officers; but that there is no power so granted in reference to this provision. Is this so? The constitution declares, that slaves escaping from service shall be delivered up, on claim, to the person to whom such service shall be due. What is the meaning of these words 'on claim?' They look to a proceeding of a judicial character; to an assertion of the right of property, to be made before a tribunal competent to judge and decide; and to execute that decision, by a delivery of the property, if the claim be established. Is not this, then, a part of the judicial power, which extends to all cases at law and in equity, arising under the constitution, laws and treaties of the United States? Is not every such claim a legal claim? and when asserted, is it not a case at law arising under the constitution? If, then, the judicial power extends to cases falling within this provision of the constitution, congress had an unquestionable right to vest it. It was a duty to vest it; because this court has decided that the language of the constitution in regard to the impartment of the judicial power is imperative upon congress. Martin v. Hunter, 1 Wheat. 304, 316.
The judiciary act of 1789 does not cover the whole judicial power under the constitution. Subsequent legislation has supplied many omissions in that act, of which the act of 1793 is an instance, vesting in the circuit and district courts that portion of the judicial power which is embraced by the second and third sections of the fourth article of the constitution.
It is true, that the act does not prescribe a judicial proceeding according to the forms of the common law. But in the same case of Martin v. Hunter, this court has said, that in vesting the judicial power, congress may parcel it out in any mode and form in which it is capable of being exercised. The act contemplates a summary proceeding, but still of a judicial character. It provides for the preliminary examination of a fact, for the purpose of authorizing a delivery and removal to the jurisdiction most proper for the final adjudication of that fact; to the state on the laws of which the claim to service depends. But this examination is judicial in its character. The parties (claimant and alleged fugitive), are brought within the jurisdiction; the case is to be heard and decided upon proof; the certificate is not to be granted, unless the judge shall be satisfied, upon evidence, that the party is a fugitive owing service to the claimant. He acts, therefore, in a judicial character, and exercises judicial functions.
If, then, congress possesses this legislative power, which has been thus exercised, the nature of that power requires that it should be exclusive. It can only be efficacious and adequate to its object, by being exclusive. And if exclusive, either expressly, or by undeniable implication, the settled principle is, that the states are as absolutely prohibited from legislation as if they were expressly forbidden to legislate. Sturges v. Crowninshield, 4 Wheat. 122. What is the nature of the power in this case? What is the object of this constitutional provision? It is, to restore to the slave-holding states, substantially, the right which the conventional law of the colonies gave them. It is to confer upon them an authority to reclaim and remove their fugitive slaves, with the least possible inconvenience, expense and delay. To be effectual to this end, it is obvious, that the mode of proceeding ought to be uniform. And in order to its being uniform, the power to prescribe that mode should be exclusively vested in one legislative body. If there be a concurrent power of legislation in the states, with a right to exercise that power, then it follows, that the fugitive could only be reclaimed according to the forms of state laws, irrespective of the regulations prescribed by congress. The constitutional guarantee would thus become a sounding phrase, signifying nothing. State legislation, upon such a subject, would become the sport of prejudice. Different tribunals, forms of proceeding, and modes of proof, would be established in the different states. And the pursuing owner would find it utterly impracticable, ignorant of the particular state into which the fugitive had escaped, to meet the requirements of the local law. A still further difficulty would be inseparable from the existence of a concurrent power. State laws have no obligatory force beyond state limits. A certificate of removal would carry no authority beyond those limits; and consequently, it would be necessary for the owner to make a new claim, offer new proofs, and obtain a new certificate in every state through which he might be compelled to pass to the state of his own residence. The nature of the power, therefore, and the effect of its actual exercise by the states, raise an implication sufficiently strong to render it exclusive.
But admit it to be concurrent; the principle is too firmly established, to admit of argument, that in a case of this kind, where there is but one subject-matter of legislation, the concurrent power of the states is wholly suspended by the action of the federal power. The doctrine in Houston v. Moore, 5 Wheat. 1, is this, that where once congress has exercised its power on a given subject, the state power over the same subject, which has before been concurrent, is, by that exercise, absolutely prohibited. In other words, wherever congress exercises a concurrent power, it is made in effect an exclusive power, over the particular subject-matter of the power. There are, it is true, cases of concurrent powers on which both federal and state legislation may act at the same time; and where the latter is not suspended by the action of the former. Thus, the exercise of the taxing power by congress does not suspend the concurrent power of the states. Because, although the same power, it is exercised on different objects, or for different purposes. But where the power acts on the same subject-matter, to accomplish the same end, as in this case, the state power is necessarily suspended.
But if the principle thus adverted to were not applicable to this case, there is another which would be conclusive, and that is, that in the exercise of concurrent powers, if there be a conflict between federal and state legislation, the latter must yield to the constitutional supremacy of the former. It remains, then, only to show, that such a conflict exists in the present case; and a very cursory examination and comparison of the two laws will be abundantly sufficient for the purpose. Thus, the act of congress authorizes the claimant to arrest the fugitive, without a warrant. The Pennsylvania law peremptorily requires one. The act of congress admits the oath of the owner or his agent, as proof of the claim. The Pennsylvania law excludes both, and requires the testimony of indifferent witnesses. The act of congress protects the claimant from all unnecessary delay and expense. The Pennsylvania law authorizes delay upon the suggestion of the fugitive; and burdens the claimant with the incidental costs. The act of congress imposes a penalty for obstructing or hindering the claimant in the prosecution and enforcement of his rights. The Pennsylvania law gives him no redress. In a word, the regulations which the two laws prescribe, are in all essential respects variant from each other. The object of both may be the same, but the means of attaining it are entirely different.
In conclusion, then, of the whole matter. The indictment charges the offence of kidnapping, under this state law. The special verdict expressly finds, that the fugitive was a slave for life, owing service and labor according to the laws of Maryland. The judgment of the court was against the party thus indicted. It follows, that in the judgment of the court, the offence of kidnapping, in Pennsylvania, may consist in seizing and carrying out of that state, an acknowledged slave, if the provisions of the state law for his arrest and removal are not complied with. The special verdict finds that fact, and the judgment of the court is founded on it. The offence charged is not that the fugitive was removed from the state of Pennsylvania, without complying with the provisions of the act of congress. Supposing that to be an offence punishable by state authority; which it clearly is not; it is not an offence provided for by this law; nor, according to the tenth section, would an exact compliance with the act of congress have been any protection to the party accused. The special verdict expressly finds, that the slave was carried out of the state, without complying with the requirements of this law of Pennsylvania. That is the gravamen of the charge. And consequently, if the state of Pennsylvania has no constitutional power to legislate at all upon the subject, the power being exclusively in congress; or, if having originally a concurrent power, it has been suspended by its actual exercise by congress; or if this state legislation is found to be in conflict with the federal legislation upon the same subject-matter; if either of these propositions has been successfully maintained, this judgment of conviction ought to be reversed.
Hambly, for the defendant in error.-The final decision of a great constitutional question should at all times be regarded as a subject for grave consideration and reflection; inasmuch as it may affect the happiness and prosperity, the lives and liberties of a whole nation. Among the people of this free country, there is nothing which should be guarded with more watchful jealousy, than the charter of their liberties; which being the fundamental law of the land, in its judicial construction, every one is immediately interested, from the highest dignitary to the meanest subject of the commonwealth. Any irreverential touch given to this ark of public safety should be rebuked, and every violence chastised; its sanctity should be no less than that of the domestic altar; its guardians should be Argus-eyed; and as the price of its purchase was blood, its privileges and immunities should be maintained, even if this price must be paid again.
In all the solemn constitutional questions which have been adjudicated before this, the highest tribunal in the land, no one has arisen of more commanding import, of wider scope in its influence, or on which hung mightier results for good or ill to this nation, than that which is now presented to the court for consideration. An all-absorbing subject is incidentally involved in it-a subject which is, even now, heaving the political tides of the country, which has caused enthusiasm to throw her lighted torch into the temples of religion, and the halls of science and learning, whilst the forum of justice, and the village bar-room have equally resounded with the discussion. Its influences have been calculated by political economists; its consequences and determinations by political prophets; until all, from the statesman in the hall of legislation to the farmer at his fireside, are found arrayed on one side or the other of this great question, so that, whilst it has become 'sore as a gangrene' in one region, it is the football of the enthusiast in another.
Prigg having been convicted in the state courts of a crime which the statutes of Pennsylvania designate as 'kidnapping,' the state of Maryland, of which he is a citizen, now raises the objection that the laws of our state are unconstitutional; and to test this question, we are this day here. On the 25th of March 1826, the general assembly of Pennsylvania passed an act, the first section of which renders it a felony to seduce or carry away any negro or mulatto from the state of Pennsylvania, to make them slaves. Mr. Hambly cited §§ 2-10 of the act of 1826. All the provisions of this act of the general assembly are alleged to be unconstitutional; and the plaintiff in error says, are in contravention of the act of congress and the constitution of the United States. The third paragraph of the second section of article 4th of the constitution, declares, 'that no person held to service or labor 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 labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.' Under this section, some contend, that the owner of a slave has a right, without reference to the municipal laws of the state or territory where be happens to be, to seize and carry away any alleged slave. That no legislation is necessary, either by congress or the states; that the clause is perfect in itself, and totally independent; and that the word 'claim' means demand and surrender, without inquiry or investigation! That if legislation be necessary, congress has exclusively that power, has already acted, exercising its power over the whole matter, and therefore, all state legislation is valid.
The act of congress was passed 12th of February 1793; and authorizes the arrest of a fugitive from labor, and taking him before a judge of the circuit or district courts of the United States, or before any magistrate of a city or town corporate, and upon satisfactory proof, the judge or magistrate shall give a certificate which shall be sufficient warrant for the removal of the fugitive. The second section fixed a forfeiture of $500 on any person who shall obstruct, hinder, rescue or harbor such fugitive, &c. In the argument of this matter, it is asserted, that no legislation is needed; that the constitutional provision is ample; and that under the phrase 'shall be surrendered, on claim,' everything which legislation can give, is already secured; and that under this clause, a power is contained, in virtue of which, any one may step into a crowd and seize and carry off an alleged slave, 'just as he would a stray horse,' or any other article of personal property. If this conclusion be correct, it is surely a strange deduction from the language used in that clause, and in direct opposition to what would seem to be impliedly its meaning. If such be the true meaning of 'claim,' why does that clause say, that no state, by 'any law or regulation therein,' shall discharge from service? Why speak of 'law or regulation,' if none be allowed? Why allude to that which is forbidden and unlawful? Why speak of state laws or regulations, if the states dare not pass any? And why not at once use the language which obviously presented itself, and say, that 'escaping into another state,' shall not discharge from service or labor, without adding a word about 'laws or regulations?' The conclusion is unsound, and altogether unwarranted. The language of the constitution not only pre-supposes legislation, but that this legislation not only is to be, or may be, but will be, by the states. It was just as much as saying to the states: You may pass laws upon the subject-you may make regulations-you may prescribe the time and manner of seizure, the authorities before whom the parties shall come for adjudication-but you shall not discharge a bona fide fugitive from labor from that service which he owes under the laws of the state from whence he fled. Your authorities shall say, whether, under the laws of that state, he owes service, and if he do, you shall hand him over.
This construction is likewise contradicted by the fact, that, not only the states, but congress, legislated upon the subject, not long after the formation of the constitution-congress as early as 1793. It is, therefore, manifestly an argument which raises a strong presumption against the position contended for; that, at the early day, when the framers of that instrument were almost all in full public life; when the debates at its formation and upon its adoption were still fresh in the memory of the whole country; congress should have legislated upon this very point. Had the public men of the day forgotten the meaning of this phrase? Could they forget that 'claim' meant peremptory surrender-that this was the meaning intended in the use of that word by the framers of the constitution, and should go to work to legislate, where not only no legislation was necessary, but not at all allowable? Such supposition will not be indulged a moment.
But again, if they had intended that neither the states nor congress should legislate upon this subject, is it not altogether certain, that they would not have used the term 'claim,' but would have selected other language better fitted to carry definitely the meaning which they intended to attach? What is the meaning of 'claim?' 'A challenge of ownership,' says Plowden. A challenge of interest in a thing which another hath in possession, or at least out of the possession of the claimant. 'Claim' implies that the right is in dispute or in doubt. 'Claim' may be made by two or more at the same time. 'Claim' has a technical legal meaning; and those who drew this instrument, being eminent lawyers and well versed in the use of language, may possibly have designed to point the meaning of the phrase, and for that reason used that word. This impression, too, is greatly strengthened by the recollection, that in the preceding clause respecting fugitives from justice, a much stronger word is used. 'Shall be delivered up on demand,' is the language used in reference to criminals; but fugitives from labor are to be delivered up 'on claim.' What now is the difference between these two terms? Why, evidently, 'demand' is peremptory. It will not admit of delay; it insists upon immediate obedience. 'Claim' supposes debate, litigation the decision of a right. How is it, when one seeks satisfaction for an offence? I 'demand' satisfaction! I require it immediately! You shall give it me, or I will force it from you! His antagonist sees by his language he is in earnest, and he must reply. But if he should say, I 'claim' satisfaction, debate springs up, negotiation ensues, and the offence most likely takes another shape. This word 'demand,' in fact, thrust itself upon the attention of the framers of the constitution. It was used in the preceding paragraph, in reference to criminals from justice, and is eminently better fitted to express unconditional surrender than 'claim' is.
But beside this, if the framers of this paper had designed such a purpose as that imputed to them, would they not have omitted from this clause the words 'in consequence of any law or regulation therein;' and the clause would then have stood in an obvious shape; and every one would have understood, that any fugitive from labor, escaping into another state, should not thereby be discharged from service, &c. This puts the matter, it is considered, in a very clear and strong light; and exceedingly adverse to the construction that neither the Union nor the states can legislate upon this subject. Another reason which might here be noticed is, that no one, either in the debates upon the formation of the constitution, or at its adoption by the states, ever asserted that to be the meaning of this clause. Mr. Hambly here referred to the debates in the Virginia convention.
Another most valid and substantial reason against this construction is, that it would be a violation of the very spirit of the instrument. If, under this term 'claim,' the stretch of power is so very great, that a man from a neighboring state can venture into Pennsylvania or Maryland, and upon his simple allegation, seize, and without reference to state authorities, carry off any one whom he may choose to single out as his fugitive from labor, it is a most unheard of violation of the true spirit and meaning of the whole of that instrument. The same power that can, upon simple allegation, seize and carry off a slave, can, on the allegation of service due, seize and carry off a freeman. There is no power, if neither congress nor the states can legislate, to dispute the question with the seizing party. In non-slave-holding states the presumption is, that every man is a freeman, until the contrary be proved. It is like every other legal presumption, in favor of the right. Every man is presumed to be innocent, until proved guilty. Every defendant against whom an action of debt is brought, is presumed not to owe, until the debt be proved. Now, in a slave-holding state, color always raises a presumption of slavery, which is directly contrary to the presumption in a free or non-slave-holding state; for in the latter, prima facie, every man is a freeman. If, then, under this most monstrous assumption of power, a freeman may be seized, where is our boasted freedom? What says the fourth article of the amendments to the constitution of the United States? 'The right of the people to be secure in their persons, houses, papers and effects, against unreasonable searches and seizures, shall not be violated.' Art. 5 'No person shall be deprived of life, liberty, or property, without due process of law.'
But here we are met with the remark, that 'slaves are no parties to the constitution;' that 'we, the people,' does not embrace them. This is admitted, but we are not arguing the want of power to 'claim' and take a salve, but to claim and take a freeman! Admit the fact, that he is a salve, and you admit away the whole question. Pennsylvania says: Instead of preventing you from taking your slaves, we are anxious that you should have them; they are a population we do not covet, and all our legislation tends toward giving you every facility to get them; but we do claim the right of legislating upon this subject so as to bring you under legal restraint, which will prevent you from taking a freeman. If one can arrest and carry away a freeman, 'without due process of law;' if their persons are not inviolate; your constitution is a waxen tablet, a writing in the sands; and instead of being, as is supposed, the freest country on earth, this is the vilest despotism which can be imagined! Is it possible, this clause can have such a meaning? Can it be, that a power so potent of mischief as this, could find no one of all those who had laid it in the indictment against the king of Great Britain, as one of the very chiefest of his crimes, 'that he had transported our citizens beyond seas for trial,' whose jealousy would not be aroused-whose fears would not be excited, at a grasp of power so mighty as is claimed for this clause? Think you not, that some one of those ardent, untiring, vigilant guardians of liberty, would have raised a warning voice against this danger? And that, too, when only eighteen months after the formation of this charter, although they had already in the body of the instrument carefully guarded the writ of habeas corpus, and provided for the trial of all crimes by jury, and in the state where committed, yet, as if their jealousy had been excited to fourfold vigilance, in their amendments provided for the personal security of the subject from 'unreasonable seizure,' and that no one should be 'deprived of liberty, without due process of law.'
Suppose (by no means an impossible case), a man to be seized in the streets of Philadelphia, simultaneously by a citizen of South Carolina and a citizen of Virginia, each claiming him as their slave; under the construction contended for, each would be entitled to carry him off, upon mere allegation! He offers satisfactory evidence to show that he is entirely free; but the state authorities cannot interfere, because the states cannot legislate and give them power; and congress cannot legislate, and if it did, could not give state officers judicial power. Martin v. Hunter's Lessee, 1 Wheat. 304. What is to be done? allow these parties to wrangle it out in the streets, to settle the question with dirk and bowie knife, or execute the judgment of Solomon? No! the answer will be, hand them over to the district court, and there let them settle the right to property. Yes! but there you meet an unexpected difficulty. The district court can try the right of property as between the claimants, but not the right of liberty as between them and the arrested freeman; therefore, it follows, that because the party out of possession of the alleged slave cannot prove his right to take him, the party in possession retains him, and carries a freeman into slavery. Possession of a slave, in the absence of proof, is sufficient evidence of title. 2 Marsh. 609. But in exercising the power of claim, and of excluding the arrested party from testing the question of slave or free, do you not violate the first clause of § 2, art. 4? 'The citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.'
In some states, they sell out, for jail fees, the personal services of certain prisoners. Now, suppose such an one, not a negro, to be seized in Pennsylvania, as an alleged fugitive from labor (and undoubtedly under this clause he may be seized), but the truth comes out, that the party seized is not and never was a prisoner, or sold out to service. Under this construction, you cannot try the question; and a free citizen goes promptly and without redress into slavery! Aye! but let that be tried, say the advocates of this doctrine, in the state to which he goes. There are two answers to this remark: first, it is in direct violation of the spirit of that provision in the constitution which requires trials to take place in the state where the infraction of law occurred; and secondly, what change of fair trial would any man, under such circumstances, have in the state to which he is taken, where all the presumptions are against him, where the whole public opinion is against him, where he is entirely separated from his witnesses, whilst the whole onus probandi is thown upon him. Better a thousand slaves escape, than that one freeman should be thus carried into remediless slavery!
It is true, that Chancellor WALWORTH, in the case of Jack v. Martin, in 14 Wend. 507, says, that the right of recaption existed at common law, and 'is guarantied by the constitution.' Now, with the greatest deference for the opinion of the learned judge, we are not convinced that the right of recaption of persons ever existed here, or if it did exist, it is taken away by the amendment to the constitution. The open avowed ground is taken, that in a free state every man is prima facie a freeman who is at large. If so, he comes under that class called 'people;' and the right of 'the people' to be secure in their persons against unreasonable seizures is guarantied by the constitution. Aye! but he is a slave, say the opponents of this doctrine. But that is not admitted. The very question at issue is, slave or free. Now, so long as he is not proved a slave, he is presumed free; and therefore, if you seize him, it is a violation of this constitutional privilege.
But, it is said, if this be not the true construction of this clause, and legislation be necessary, that the right appertains alone to congress; and that the act of 1793 covers the ground, and leaves no room for the action of state legislation. That no power to legislate upon this subject is expressly granted 'in terms' to congress, must be at once conceded. It must likewise be as readily conceded, that it is not 'prohibited' to the states. Then, if congress possesses this power, it must be, in virtue of a concurrent authority of acting upon the subject matter; or because this is a faculty which is necessary to the exercise of some power already granted. That it is not the latter, is manifest; for the most laborious investigation, and the most careful search, aided by the most critical powers of mind, can show no single provision of the instrument to the exercise of which this legislative power would be necessary.
There are two kinds of concurrent powers embraced by the constitution: 1. Those which both bodies may lawfully legislate upon; and 2. Those which the states may legislate upon until congress acts; when the latter, being the supreme power, excludes the former. As an instance of the former, the regulation of the militia may be cited. Congress can 'organize, arm, discipline and govern,' whilst to the states is reserved the right of appointing officers and the authority of training. Art. 1, § 8, cl. 16; Houston v. Moore, 5 Wheat. 24. An illustration of the latter class may be found in the power to establish bankrupt laws; on which, it has been decided by this court, that the states might legislate until congress did, when the acts of the former would cease and expire. Sturges v. Crowninshield, 4 Wheat. 193.
In order, therefore, to ascertain whether this power of legislation be concurrent or not, we must inquire: 1st. Whether it were possessed by the states, previous to the formation of the constitution, and appertained to sovereignty. 2d. Whether granted in express terms to the Union, or prohibited to the states. 3d. Whether it be an exertion of sovereign power by operating beyond the state territory; or, 4th. As necessarily originating in the Union, so that no exercise of it by the states can take place, without clear, open and undisguised conflict with the constitution.
Now, let us test this question by these rules. It is manifest, that slaves and slavery were the subjects of legislative power by the states, before the Union. After the declaration of independence, in 1776, each state, at least before the confederation, was a sovereign independent body. Each had the right to enact laws which no other power could revise; each could make was or conclude peace, without reference to the other; each could raise armies or maintain a navy, without consulting the others; and, in fine, possessed every faculty of sovereign power, as effectually and entirely as either France or England or any of the kingdoms of the old world, and equally as untrammelled. Then, this being the case, the union was formed, by taking away from the individual states portions of power, and vesting them in one central body, known as 'the Union,' in the formation of which were admitted maxims: 1st. That it possessed nothing by implication, except what was absolutely necessary to its existence: and 2d. That powers not delegated to the Union, nor prohibited to the states in express terms, were reserved. Art. 9 and 10 of Amendments. South Carolina, as early as 1695, passed laws upon the subject of slaves and slavery, and so down to the present time. So also, Connecticut in 1711, and Maryland in 1715. These, then, are sufficient, as instances of the exercise of this power by the states, long before the constitution was formed; and this proves the first position,-that it was possessed by the states, previous to the formation of the constitution. And it will not be controverted, that the power is not 'expressly' granted to the Union, nor prohibited to the states. Thirdly, the exercise of this power by the states is merely a matter of police and internal regulation; and therefore, does not operate beyond the state territory: and lastly, the power does not originate in the Union that is, the right of legislation does not grow out of the Union; the power itself, the subject-matter, is not the birth of the Union; nor is its exercise a 'clear, open undisguised conflict with the constitution,' as the exercise of extra-territorial power would be.
It is inferred, then, from all this, that this power is not a concurrent one; that for want of express reservation of such right, it has not the features which enable it to be exercised at the same time by both parties, as is the case with the militia laws. Nor can the action of congress absorb it and drive the states from it, as is the case with the bankrupt laws. It is a power which exists, and can only exist, in the states. Nor is it any answer to all this, to say, that a variety of laws and regulations will be passed by different states; that the legislation will be incongruous and dissimilar. We must take the constitution as we find it! Our duty is to construe, not to legislate! And we are told by good authority, that in the construction of constitutions, the argumentum ab inconvenienti will not answer; we dare not use it. The ita scripta rule is enough for us. If the constitutional provision be defective, there is a constitutional mode to amend it: let us then rather apply to that, than violently wrest the instrument by construction.
It is urged, however, that the passage of the act of congress of 1793 affords a very strong argument in favor of congressional action upon this subject; that the fact of its passage at so early a day evinces the understanding of that clause of the constitution to have been, amongst the framers of it, that congress alone had the right to legislate; and hence, by implication, as it were, they would convince us, that it was one of those concurrent powers which the action of the highest legislative body absorbs and takes away from the states. This argument, if it prove anything, will prove too much.
The act of congress authorizes the arrest of the fugitive, and requires him to be taken before any judge of the district or circuit court, or before any magistrate of a county, city or town corporate. Now, it is a principle perfectly settled by judicial decision, that congress cannot communicate the exercise of judicial power to any person who does not hold the commission of the general government. Martin v. Hunter's Lessee, 1 Wheat. 330. 'Congress cannot vest any portion of the judicial power of the United States except in courts ordained and established by itself.' Const. § 3, art. 2: 'The president shall commission all officers.' Now, if no man can be an officer of this government, without bearing the commission of the president, certainly, no 'magistrate of a county, city or town corporate' can be a judicial officer of the general government, and so cannot take authority under the act. This principle is necessarily derived from art. 3, § 1, which provides, 'that the judicial power of the United States shall be vested in one supreme court, and in such inferior courts as congress shall, from time to time, ordain and establish;' and of course, the persons holding this power must be commissioned by the power which establishes the courts. This doctrine has long bee held by both the supreme and state courts. United States v. Lathrop, 17 Johns. 4; Ely v. Peck, 7 Conn. 239. The former was a case in which an action of debt was brought for a penalty, under the act of 1813, for selling spirituous liquors, and gave the state courts jurisdiction. The last case was an action against a deserting mariner, in which the state court had jurisdiction given it by an act of congress; but the judges in both cases declined exercising it. 1 Kent's Com. 402-3. This, then, being the case, that the act of congress of 1793 gave to 'magistrates of a county' an authority which it could not give, the conclusion is irresistible, that they did not at that day understand, in the legislative hall, the construction of the constitution, as well as we do now, after an interval of half a century; and therefore, the argument above cited is of no avail, inasmuch as it explodes itself. Besides which, we might add, that the states have claimed the power just as openly and avowedly as congress has done.
It is supposed, however, that the weight of judicial authority from the state courts, is in favor, very decidedly, of the exercise of this power by the national legislature. Let us, therefore, examine. In 5 Serg. & Rawle 62, is contained the case of Wright v. Deacon. This was a writ de homine replegiando. The case had already been tried on habeas corpus, and adjudicated against the party, and upon that point decided; whilst it was taken for granted, that the constitution and act of congress gave warrant for his removal. The question was not agitated as to the constitutionality of the law of congress, or that of Pennsylvania; and the case, therefore, gives no authority for this construction. Commonwealth v. Griffith, 2 Pick. 11, was an indictment for an assult and battery upon a negro, and the defence made was, that he was a slave, and had fled from servitude. The court say, 'This brings the case to a single point, viz., whether the statute of the United States is constitutional or not. The constitution, say they, does not prescribe the mode of reclaiming a slave, but leaves it to be determined by congress.' Here is taken for granted, that which is far from appearing. One leap reaches the conclusion; without showing how congress attains this power, whether expressly, by implication, or how. In fact, one of the judges dissents, saying that he thought the fugitive should be seized in conformity to state laws. Further, the unconstitutionality of the law was not attacked on the ground that congress had no right to legislate at all; but merely because in conflict with other parts of the instrument. This case, therefore, it is respectfully conceived, proves nothing for the plaintiff in error.
In 12 Wend. 314, is found the case of Jack v. Martin. This was a writ de homine replegiando; and Judge NELSON, in the court below, decided, that the legislative power was concurrent, and therefore, the action of congress excluded the states from legislating, and that the object being palpable-i. e., to secure the slaves of the south-it should have a construction that would operate most effectually to attain the end. We contend, that we are giving that construction to this clause most likely to produce the desired end. If excited argument and an interested withdrawal of the whole subject-matter from the hands of the states could be effected by the south, will it not produce constriction and collision with the free states? Which is most likely to keep the peace? A tone of confidence and conciliation, or of defiance and the attempted exercise of illegal power? We must negotiate and legislate upon this and every other subject with the calumet of peace, rather than the tomahawk; with the conciliatory spirit of a band of brothers, instead of the animosity of deadly foes. The case of Jack was taken up before the court of errors and appeals, and the decision below sustained-not the question of constitutionality, but the question of fugitive or not, because Jack had admitted he was a slave by his pleas. But the question of constitutionality was debated, and in my judgment not a single solid reason was given for that construction, but on the contrary, Chancellor WALWORTH says, 'I have looked in vain among the delegated powers of congress for authority to legislate upon the subject,' and concludes that state legislation is ample for the purpose.
Now, then, upon recapitulating these cases, what have we? 1. We have one case where the constitutionality of the law is taken for granted, by Chief Justice TILGHMAN. 2. We have argument of Judge NELSON and Senator BISHOP, in favor of it, and the case in Pickering: and-3. We have the decisive opinion of Chancellor WALWORTH, and the dissenting judge in the case in Pickering. For, neither in Ex parte Simmons, tried by Judge WASHINGTON, and reported in 4 W. C. C. 396, nor in the case of Johnson v. Tompkins, Bald. 571, was the question of constitutionality at all mooted or spoken of, but both judges speak in the same breath of state laws and laws of congress; without once impugning the right of either party to legislate, or for one moment intimating a doubt as to the constitutional right of either party to pass them.
It may, however, be contended, that this authority to legislate is given to congress by the 18th clause of § 8, art. 1, of the constitution: 'And to make all laws which shall be necessary and proper for carrying into execution the foregoing powers and all other powers vested by this constitution in the government of the United States, or in any department or officer thereof,' Judge STORY says, in his Commentary, § 1238: 'The plain import of this clause is, that congress shall have all the incidental and instrumental powers necessary and proper to carry into execution all the express powers. It neither enlarges any power specifically granted, nor is it a grant of any new power to congress.' This case, then, is not embraced by the first part of the section, because it is not one of the 'foregoing' enumerated powers. Nor is it included under the other term, 'all other powers vested,' because there is no power vested, for the learned commentator just alluded to, says it means express powers.
Speaking of the constitution, we are told in Martin v. Hunter's Lessee, 1 Wheat. 326, the government of the United States can claim no powers which are not granted to it by the constitution, and the powers actually granted must be such as are expressly given or given by necessary implication. On the other hand, this instrument is to have a reasonable construction, according to the import of its terms. The words are to be taken in their natural and obvious sense; not in a sense unreasonably restricted or enlarged. Certainly, then, this phrase, 'powers vested,' means express powers; any other mode of construction would do violence to the whole instrument, and overturn a whole series of decisions. If, then, it means express power, there is none such in this case; and therefore, under this clause, congress cannot exercise the authority claimed. 1 Kent's Com. 388-90. 'The correct principle is, that whenever the terms in which the power was granted to congress, or the nature of the power required that it should be exclusively exercised by congress, the subject was as completely taken away from the state legislature as if they had been expressly forbidden to act on it.' But is that the case here? the power is not granted in terms at all, and the nature of the power is such, that the states can as easily and usefully exercise it as congress. The truth is, the power is one of police and internal regulation, as much as ferries, turnpikes and health-laws; and in Gibbons v. Ogden, 9 Wheat. 203, we are told, that 'no direct power is granted over these objects to congress, and consequently, they remain subject to state legislation. If the legislative power of the Union can reach them, it must be for national purposes.' How can legislation respecting slaves become national when only a part of the states hold them? Such legislation cannot assume a national aspect, or attain a 'national purpose.'
If, then, this power be not expressly in congress, nor concurrently, nor necessarily appurtenant to any other power, what is the meaning of this clause? 'No person held to service or labor in any state, under the laws thereof, escaping into another, shall, in consequence of any law or regulation therein, be discharged from such service, but shall be delivered up, on claim of the party to whom such service or labor is due.' It simply means this-nothing more nor less: You may legislate; you may regulate; but this one point alone you shall not touch: You shall not discharge the fugitive from service, if he were a slave by the law of the state from whence he fled.
The result is, that no power being given to congress to legislate, it is reserved to the states, under the 10th article of the amendments. 'The powers not delegated to the United States by the constitution, nor prohibited by it to the states, are reserved. Federalist, No. 32. The state governments clearly retain all the rights of sovereignty which they had before the adoption of the constitution, and which were not by that constitution exclusively delegated to the Union. 1 Wheat. 325. Suppose, art. 4, § 1, is read thus: 'Full faith and credit shall be given, in each state, to the public acts, records and judicial proceedings of every other state;' and then stopped. Is is not apparent, that the states could by law regulate the kind and quantum of proof, the manner in which their courts should receive it; and if it was thought they could not, why in express terms reserve to congress 'the right to prescribe the manner in which they shall be proved, and the effect thereof.' Under art. 1, § 4, cl. 1, the times, places and manner of holding elections for senators and representatives shall be prescribed by the state legislatures; but the framers of the constitution cautiously add, that congress may make or alter such regulation, except as to place. Art. 1, § 8, cl. 5, the power to coin money, one of the highest attributes of sovereign power, is expressly given to congress; and yet, in § 10, cl. 1. of art. 1, the states are cautiously and expressly prohibited from coining money. This has always been the highest mark of soeverign power.
It is, however, supposed by some, that because congress has legislated on the surrender of criminals, that therefore, there is stronger ground for claiming the right of legislating here. Mr. Hambly cited the Madison Papers, and Debates in Convention, that this matter was expected to be left to state legislation; and that the south was not united itself upon the subject. Madison Papers, p. 1447. As if, however, to remove all doubt upon this subject, we have, in the constitution itself, an open admission that the whole subject of slaves and slavery was left in the hands of the states. Art. 1, § 9: 'The migration or importation of such persons as any of the states now existing shall think proper to admit, shall not be prohibited by congress prior to 1808.' Now, what is the meaning of this? Why, that congress shall leave the slave-trade, and all its operations, to state legislation entirely, with the exception, that after 1808, they may stop it, if they choose; but if they do not choose, it will always remain in the hands of the states, until they do see fit to close it. This, to my mind, with any other consideration, is sufficiently convincing that every body at that day rightly understood this whole matter to be the subject of state legislation.
The use of the terms 'legally' and 'justly,' in the formation of the constitution, shows that the right was to be ascertained by competent authority, not taken for granted; and that legislative power somewhere was to exercise itself upon the matter, and by none, more probably, than the same power which then had it in control,-the state legislatures.
It now only remains to examine two arguments urged on behalf of the plaintiff in error. It is alleged, that the judiciary act of 1789 vests in the courts of the United States the whole judicial power of the government; and that this being judicial power, which is sought to be attached to the general government, it is impliedly embraced by that act. One word will be a sufficient answer to that argument. The power asked, or rather claimed, is not judicial, but legislative; and therefore, can by no possibility be claimed by, through or under the judiciary act. Another argument is, that legislative construction has, with this court, almost the authority of judicial decision. And because congress has, in its reports upon slavery, admitted or asserted this right, their claim, therefore, should be regarded almost as a judicial construction. It is answered, that if there be any one thing in this country entirely loose, uncertain and vascillating, it is legislation; and whenever the judicial exposition of our highest courts becomes so wavering and uncertain as to bear comparison with our legislation, we shall truly be the pity and contempt of all civilized nations.
It has been shown: 1. That 'claim' does not mean peremptory demand and unconditional surrender. 2. That legislation is contemplated by the language of the clause; and that both congress and the states have legislated. 3. That this construction was never asserted by the framers of the constitution. 4. That it would violate its spirit. 5. That the power of recaption of persons never existed, or if it did, is restrained by the amendments. 6. That this power is neither expressly granted to congress nor prohibited to the states; nor is it necessary to the exercise of any granted power, nor impliedly reserved. 7. That the states possessed this power before the constitution was formed. 8. That it is a mere regulation of police, and does not suppose the exercise of national power; and, 9. That the constitution, in art. 1, § 9, gives, or rather leaves the whole subject in the hands of the states, where it originally found it.
Johnson, Attorney-General of Pennsylvania, stated, that he appeared before the court in obedience to the directions of the act of assembly, passed in 1839, to which reference had been made, to maintain the constitutional authority of Pennsylvania to enact the several laws set out in the paper-book in the hands of the court; and constituting the ground-work of the indictment and proceedings in the present case. He said, he occupied a position of great delicacy and embarrassment; he stood before the court not only as the counsel, but as the official representative of the Commonwealth of Pennsylvania; and was, as such, bound by an oath as solemn as that taken by their honors, to support the constitution of the United States. It was made his duty to vindicate the right of Pennsylvania to adopt the laws in question against the allegation of the learned gentleman, who so ably represented the interests of Maryland, that they conflicted with the constitution and laws of the general government. In performing this duty, he felt the responsibility to be almost as binding as if he were pronouncing a judicial decision, to advance no doctrines that were, in his judgment, incompatible with the true construction of the federal constitution.
It was gratifying to him, to be able to assure the court, that this official duty and his own conscientious convictions of right, as a citizen of the Union, were in perfect harmony on this subject; he should not hestiate to speak in earnest, for he spoke with sincerity. He desired to place Pennsylvania rectus in curioe, on her proper footing, before the court. She came there voluntarily. She was not dragged sullenly to that high bar, denying the jurisdiction of the court and disclaiming its authority. This proceeding was one of amity, of concord, on the part of Pennsylvania and of Maryland, which were, as the learned counsel had told the court, the real and substantial parties. They came into that court to try a great question of constitutional law, to terminate disputes and contentions which were arising, and had for years arisen, along the border line between them, on this subject of the escape and delivery up of fugitive slaves. Neither party sought the defeat or humiliation of the other. It was for the triumph of law, they presented themselves before the court. They were engaged, under an imperative sense of duty, in the work of peace; and he hoped he would be pardoned, if he added, of patriotism also.
The difficulties which resulted in the present case had been previously felt, and made the subject of negotiation between these states. And it was a curious fact, that this very act of 25th March 1826, the unconstitutionality of which is alleged in this case, was the joint fruit of such negotiation. It was passed, as he believed, at the instance and with the entire approval of commissioners appointed by the constituted authorities of the state of Maryland, to wait upon the legislature of Pennsylvania to obtain the passage of some law of the kind. At the time of its passage, it was loudly condemned by that portion of the citizens of Pennsylvania who favored the abolition of slavery. And now, a singular change of places is exhibited-the state of Maryland repudiates what she then sanctioned; and the adversaries of slavery sustain, though not very cordially, what they then condemned. One of these parties thinks this act of 1826 is too indulgent to slave-holders; the other, that it deprives them of their just rights. The considerate and enlightened citizens of Pennsylvania, with few, if any, exceptions, were, he believed, of the opinion that this law was precisely what it should be-alike warranted by the federal constitution, and careful to protect the rights of all. As such, it would be his duty, as it was his pleasure, to maintain it against every assault upon its constitutionality, let it proceed from whatever source it may.
By the act of 1780, Pennsylvania began the great work of philanthropy in regard to her slaves. She has pursued the policy there indicated, until slavery, with only here and there a time-stricken relic of former policy, has vanished from the soil. She did not trench on the rights of other states. She did not impugn the principles, or the conduct of their citizens-deeply as she abhorred slavery herself. She performed her own duty, and left to others the glory or the shame of performing or of neglecting theirs. In this act of 1780, there is a saving of the rights of slave-holders in other states. So, in the act of 1826. Its very title speaks its object. It is 'an act to give effect to the provision of the constitution of the United States, relative to fugitives from labor, for the protection of free people of color, and to prevent kidnapping.' Thus is this very unconstitutional act found to be an act to give effect to the constitution. The history of the legislation of Pennsylvania on this subject will prove, that though she has been ever found in the vanguard of the friends of liberty and humanity, she never has forgotten what is due to her sister states; she never has wavered in her loyalty to the constitution of the Union; and come what may, she never will depart from this course.
That Pennsylvania had the right, then, to enact the law in question, she solemnly avers to have been accorded to her by the state of Maryland land herself. She will not consent to surrender it, until this court, by its decision, strips her of that valued attribute of sovereignty. None will deny, that the main questions involved in this case are delicate, in some respects intricate, and in any point of view, important to all sections of the Union. Substantially they are these: 1. Is the power of prescribing the mode of delivering up fugitives from service or labor, under the 2d section of the 4th article of the constitution, exclusively vested in the general government? 2. If it is not, is it concurrently vested in the state and general governments, to be exercised on particular terms? or is it solely vested in the state governments? 3. Have the states the right to inflict penalties, as in cases of crimes, upon those who seize and remove fugitive slaves out of their territories, without pursuing the mode prescribed, either by the act of congress of 1793, or by the acts passed on the same subject, by the states themselves? The last of these three questions is the most material in the present case: perhaps, it is the only real question in this case, upon which the court is imperatively called upon to pronounce its judgment.
It is to be extremely regretted, that we have no judicial guides to aid us in the argument of this cause, which are of higher authority than the mere opinions of individual judges, who have, incidentally, often hastily, expressed them. The cases, such as they are, unfortunately, are few, conflicting and contradictory. They have, it is true, all occurred in states where slavery has been abolished, for such questions must rarely, indeed, happen, in states where slavery exists. It is obviously the interest of all parties in such states, to determine the question in one way. Without pretending to trouble the court with a detailed and critical examination of the following cases, he would refer to them as exhibiting a most striking illustration of the 'uncertainty of the law.' Deacon's Case, 5 Serg. & Rawle 62; Johnson v. Tompkins, Bald. 571; Commonwealth v. Holloway, 2 Serg. & Rawle 306; s. c. 3 Ibid. 4; Commonwealth v. Griffths, 2 Pick. 18; Jack v. Martin, 12 Wend. 322; s. c. 14 Ibid. 510. In the cases in the New York and Massachusetts reports, the courts were divided in opinion. In the cases in the Pennsylvania reports, the question did not properly arise, and the court, without examination, declared its opinion on the constitutionality of the act of congress of 1793. This subject has been incidentally noticed in a few other instances, but not in such a manner as to be deemed essential.
The questions are thus perfectly open and free from all embarrassment on the score of authority. Decisions of this court on other provisions of the constitution will supply us with useful analogies; but we are thrown back on the elementary principles of the constitution itself, for the foundation of the present argument. Let us then recur to these principles, as the source of the power we are in quest of, and trace it up to its fountain-head.
The times call for a full and frank exposition of this subject; and he rejoiced that it had been presented, at this juncture, before this tribunal, and in the friendly spirit that actuated the parties now at the bar. He begged leave to make one further preliminary suggestion, before he opened the constitution. It was this: that the state and national governments were too often viewed as hostile and repugnant to each other in their relations. Powers granted to one, were regarded as if withdrawn from the other; and it seemed to be the effort of some who were called upon to judge between them, to treat them as if they mutually approached each other as belligerents, with swords drawn. This was not his opinion, nor would it be his course. He thought, with the fathers of the republic, that both were essential to each other; both formed one consistent, harmonious, beautiful system of government-complete when united-imperfect when divided: combined, stronger than links of iron-dissevered, weaker than a rope of sand. It would be his purpose, therefore, to contend for such a construction of the federal constitution as would place the state and national governments on this solid and impregnable basis.
I. In regard to the first question he had suggested, he would proceed to read and comment on the second section of the fourth article of the constitution, which was in these words, 'no person held to service or labor 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 labor, but shall be delivered up, on claim of the party to whom such service or labor may be due.' This provision certainly gives no authority to the general government, in terms; none, even by implication. It simply enjoins a duty on the states, and prohibits them from passing laws or regulations liberating fugitive slaves. It recognises the general right to legislate on this subject, for it restricts its exercise in a particular manner. If they could not legislate at all, it was futile and absurd, to say they should not pass laws of a particular description. But it enjoins that the fugitives shall be 'delivered up,' 'on claim.' This duty is made incumbent on the states, without prescribing the exact mode of its performance. The agency of the general government is in nowise concerned or invoked; the obligation is on the states, and for the states; their power is left perfectly free and untrammeled, with this single restriction-that they cannot discharge the fugitives from the claim of their masters or owners. The authority vested in the states, is in the nature of a negative pregnant; it denies and admits-denies the particular power of liberating fugitives, and admits the general power to prescribe how they shall be delivered up. Should the states transcend their authority, by enacting laws impairing the right of the slaveholder, the remedy is by judicial instrumentality. It is here: this court will pronounce the acts unconstitutional and void. But this power of the general government is preventive-not active; it is solely the right to restrain, not the right to compel. There are various restrictive clauses in the federal constitution; but no one ever supposed, that a prohibition of legislation upon the states gave the positive right to congress to legislate; much less can it be pretended, that a prohibition of a particular species of legislation divested the states of all general authority on the subject, and transferred the right to the national government. This construction of the powers of the general government would annihilate the state sovereignties at a blow. See on this subject of the general powers of the general government, the letters of the Federalist, Nos. 41, 42 and 43; but especially 42. In this letter, the subject of the 4th article of the constitution is distinctly and elaborately considered. Every line, and every word, is noticed; but this very identical provision, in regard to fugitive slaves, is entirely omitted. Had it, at that day, been supposed to have conferred any power on the general government, could it thus have been passed silently by? Does the tremendous power arrogated for the national government, in this case, lurk in this provision, without having been discovered by the keen eyes of Hamilton, Madison or Jay? These letters of the Federalist, were written before the adoption of the constitution. They were read by almost every one. The comments were identified with the letter of the constitution itself. They have been always treated as a contemporary exposition, by the first judicial intellects of the age, sanctioned by popular adoption; and he felt persuaded the court would pause, before it construed into the constitution, powers which these great men never dreamed of ascribing to the general government.
The reason for introducing this provision into the constitution, is itself the best exponent of its meaning. Prior to the adoption of the constitution, slavery, absolutely, or in a modified form, existed in all the states, except perhaps in Massachusetts. The right of the master to pursue and recapture fugitive slaves then existed by mutual comity. Few, if any, fee negroes could be found. The presumption was, that all negroes were slaves. No general regulation was necessary; for it was the interest of all the states, to countenance and aid the master in the recapture of his runaway slave. But symptoms of repugnancy to slavery began to be manifested in Pennsylvania and other states; and the southern states were apprehensive that it might, at some future day, interfere with the recovery of their property. They desired a guarantee from the general government; not that that government should provide for the redelivery of their fugitive slaves, but that the constitution of the Union should prohibit the states from passing laws declaring them to be free. The provision of the constitution under consideration furnishes this guarantee; it never was intended for more. See 2 Elliot's Debates, 335, 336; Mr. Madison's and Governor Randolph's speeches in the Virginia convention. Had the southern states demanded more than this simple guarantee; had they required that the right of the states to prescribe the mode of surrendering up fugitive slaves should be yielded to congress exclusively; we know not but it might have jeoparded the formation of the Union itself. It is well known, the word 'slave' is not found in the constitution. That it was excluded on account of the scruples of certain of the northern members of the convention; and had these members been told, that they were depriving the states they represented of the power of directing the mode in which fugitive slaves were to be redelivered to their masters, who can doubt, that they would have rejected with indignation, any instrument of government, containing such a surrender of state sovereignty as this?
The constitution does not aim at any abridgment of the state sovereignties on this subject, except in the single point of prohibiting them from setting fugitive slaves at liberty. In all other essential particulars, it wisely leaves them to the exercise of their own judgment. Different rules on this subject would naturally be established in different states. Less strictness of proof of the right of the master would be satisfactory in a slave state, than would be so in a free state. Some respect is due to the common feelings, or even prejudices of a community, in the enforcement of claims deemed odious in principle to any considerable number of the people. If even compatible with justice, they should not be pressed in a manner to outrage or would the sympathies of those on whom the demand is made. To abhor slavery, in principle, is no great offence, in a country where liberty is the boast and the birthright of every creature wearing the image of his Maker. The states are the best judges of that mode of delivering up fugitive slaves, which will be most acceptable to their citizens. It is evident, that no general law can suit the spirit of the people in all; and the only rational mode of providing for the evil, is that provided by the framers of the constitution-by committing it to the wisdom and patriotism of the states themselves. The tendency of this course of reasoning is, not only to prove that the general government has not exclusive, but that it has no jurisdiction over this subject whatever. To remove all possibility of difficulty, however, he would proceed to consider the nature of its exclusive powers, with some minuteness, but great brevity.
On every principle of rational construction, recognised by common sense and by judicial decisions, exclusive authority on any given subject was vested in the national government in only three cases. 1. When the power is expressly granted. 2. When the power is vested in the general government, and prohibited to the states. 3. When the exercise of a power by the states would be contradictory and repugnant to the exercise of a rightful power by the general government. See the Federalist, No. 32; Sturges v. Crowninshield, 4 Wheat. 122; Gibbons v. Ogden, 9 Wheat. 1.
Under which of these classes of exclusive powers, can such power be inferred in this case? Not under the first, for, as has been already shown, no such power is given. Not under the second, for no power is vested in the general government, nor prohibited to the states, in the section now before the court, which has been violated. Not under the third, for the general government neither possesses, nor has exercised any power, to which the exercise of the power of enacting the law in question by Pennsylvania, is either contradictory or repugnant. The supposed incompatibility, arising from the nature of the power to be exerted, cannot render it exclusive in the national government; for the very foundation of the argument is wanting, the existence of the power at all.
II. Taking it, then, as established by the argument, that exclusive authority to legislate on this subject is not vested in the general government, is it vested in the respective states concurrently, and co-operatively with it, or solely and independently of all control on the part of congress? Anterior to the adoption of the constitution, the power of prescribing the mode of surrendering up fugitive slaves, clearly belonged to the states alone. It is not taken away by that instrument; it is not inconsistent with any of the powers vested in congress or the general government; it is one of the most necessary attributes of sovereignty recognised and sanctioned by every principle of national law. It belongs to them still. No rightful power exists to divest it. The constitution forbids it; and the constitution only can strip them of this power. See 4 Wheat. 122; 5 Ibid. 1; 2 Dall. 294: 3 Ibid. 386; 2 Wheat. 259; 3 W. C. C. 316, 322. The tenth article of the amendments of the constitution settles this part of the case beyond all cavil or controversy. There let it rest. Whatever may be the power exercised by congress, the states at least cannot be deprived of the power that belongs to them under the constitution.
The act of congress of the 12th February 1793, on this subject, is supposed to be a constitutional exercise of power. Passed so recently after the adoption of the constitution, and by men intimately associated with that event, it has hardly ever been subjected to the test of examination; it has been taken for granted, and acted upon without question. But even great names cannot sanctify wrong; time cannot supply the want of constitutional authority. We must examine that act of congress now, as it would have been examined if it had come before this court the day after it was enacted. He would not speak irreverently of the congress of 1793; but he would take occasion to say, the history of this famous law exhibited some curious reminiscences. Its origin, in a few words, was this. In the year 1791, the governor of Pennsylvania made a demand on the governor of Virginia, for the surrender of three persons charged with kidnapping a free negro. After taking the advice of the attorney-general of that state, the governor refused to comply, on the ground, that although the constitution made it obligatory on him to surrender up fugitives from justice, yet as there was no act of congress directing the mode in which it should be done, he could not and would not yield to the demand. The governor of Pennsylvania submitted the question to President Washington, who, after consulting the attorney-general of the United States, brought the whole matter to the notice of congress. See 1 American State Paper, Miscellaneous, 38-9. That body referred the subject to a committee; a bill was reported, substantially the act of 1793. It lay upon the table for a considerable period, and finally passed and became a law on the 12th February 1793. It is to be observed, that the only question submitted, was the one touching fugitives from justice-not fugitive slaves. The two subjects were comprehended by congress in one bill, and the northern states were constrained to agree to the provision relative to fugitive slaves, for the purpose of procuring the passage of a law providing for the case of fugitives from justice.
The science of legislative log-rolling, which has been deemed of quite modern origin, appears not to have been unknown to the congress of 1793. There is no question about the power of congress to legislate on the question of fugitives from justice. The demand is to be made by the executive authority, on a 'charge made' against a person, of treason, felony, &c., who shall flee, &c. The first section of the fourth article of the constitution expressly confers on congress the power of prescribing the manner in which 'records and judicial proceedings shall be proved, and the effect thereof.' The right, therefore, to legislate on this subject is clear. But there is not the remotest connection between this matter and that of fugitive slaves. The one has sole reference to crimes perpetrated against the public peace and public safety; the other to the recapture or reclamation of private property: yet congress classed them together, and made the provision for one depend on a similar provision for the other.
What are the features of this act of congress, which, as is contended, was passed in pursuance of the constitutional authority of the general government; and which terminated for ever, if such right ever existed, the concurrent power of the states to legislate on the same subject? It empowers state judges, magistrates, &c., to take cognisance of the cases of fugitive slaves, together with judges holding their appoinments under the national government. So far as it attempts to vest this or any jurisdiction in state officers, it is unconstitutional and void. The solemn decision of this court has branded such attempt with condemnation. See Martin v. Hunter's Lessee, 1 Wheat. 304; 3 Story's Com. Const. 114, 115, 386, 603; Serg. Const. Law 386, 398.
That act, then, is void, so far as relates to all instrumentality for its execution, but by the judges of the courts of the United States. The authority of its framers, as constitutional lawyers, is thus exploded; and their boasted work, like all things human, is characterized by frailty and error. If it even be regarded as conformable to the constitution, its execution is rendered almost impracticable by the want of adequate agents. In a large state like Pennsylvania, with but two district judges residing three hundred miles apart, how is the difficulty of obtaining certificates of removal for fugitive slaves to be obviated? If the state authorities cannot be called upon to furnish aid, what are the limits to the obstacles that environ the masters? A very brief season of trial will make them known. He would suggest to the court, whether this act of congress was not operative only in the district of Columbia, the territories, and wherever congress had exclusive right of legislation. To this extent, he did not intend to question its validity.
It was a fair and reasonable presumption from the provision of the act of congress itself, authorizing the interposition of state officers, that congress, aware of its inherent defect of jurisdiction, contemplated the co-operative or concurrent aid of state legislation, to carry the provisions of this law into effect. If not, why impose on the state magistrates duties which they could not perform? Would a certificate of removal, given under this void authority, authorize the master to remove his slave? Clearly not! Nor would it afford him any protection against the rescue or escape of his slave. To seek the aid of such official authority would be alike dangerous and idle. It would lead to incessant broils and disturbances of the public peace; and to the inevitable escape of the fugitive from his master. In this state of the case, the legislature of Pennsylvania deeming the act of congress, pursuant to the federal constitution, steps forth to aid the pursuers of fugitive slaves. The act of assembly of that state of the 25th of March 1826, was passed in the manner he had already stated, to confer authority on her own magistrates and judges, which the constitution had denied under the act of congress.
It, in the first place, describes the offence charged against the defendant in this case, and then proceeds to find the mode in which the state magistrates and judges shall take cognisance of the cases of fugitive slaves. It does not change the mode of making proof on the part of the claimants, nor the mode of granting certificates of removal; it simply deprives subordinate magistrates of the power of granting such certificates, but it directs their interference to procure the arrest of the fugitive, and enjoins on the several judges the duty of hearing the proof and granting the proper certificates for the removal of the fugitive, on certain terms therein prescribed. It does not touch the act of congress. It recognises its authority, and leaves it as it stood before. Proceedings under this act of assembly are purely voluntary. Claimants may resort to it for aid, or pursue the directions of the act of congress. If its provisions are onerous, discard them: take shelter under the national law. But it is an additional remedy provided for the benefit of the slave-holders. It gives them a short cut to justice, and what cause have they to complain, if it leaves the other course equally free for their adoption? In determining which remedy to invoke, the slaveowner will be governed by circumstances, distance, place, character of neighborhood, clearness of his own proof, &c., and will act according to the preponderance of advantages. Not one particle of inconvenience can he suffer under this act of Pennsylvania, while he has the chance of manifold benefits.
The acts of congress and of Pennsylvania form together an harmonious system, neither jarring nor conflicting in any part of its operation. It is careful of the rights of the slave-holder, and is adapted to the feelings, sympathies and sovereign power of the states. If the power to pass laws on the subject of delivering up fugitive slaves be concurrent, the states cannot control the acts of congress, and cannot, therefore, impair the rights of the owners. If the power be solely vested in the states, they cannot impair this right under the federal constitution. In either case, the slave-holders may bid defiance to hostile state legislation. The mode of recapturing or seizing their property by the southern slave-holders, under the laws, both of congress and of the legislature of Pennsylvania, is a summary one, in derogation of the common law; and might be confined to a strict and rigid adherence to the boundaries laid down on the subject, in either of them, to the exclusion of the other under the constitution; but when the free states themselves, who might require this construction, choose voluntarily to surrender it, and treat it as a remedial power, to be enlarged, by both state and national legislation, for the benefit of the slave-holders, it is an extraordinary spectacle to see those most deeply interested arrayed among the adversaries of this liberal policy. It appeared to him one of the most unaccountable delusions that ever seized the human mind. He would leave to future times, as a matter of wonder, the task of discovering why his learned and zealous friends on the other side, and himself, had not changed places in this argument. Experience will demonstrate who advocates the true interest, not of the north only, but of the south, and of all sections of the Union. He did not for an instant question motives, he spoke of results alone. To these he would appeal, for a judgment that might abide the test of time, with all its attendant train of circumstances, fraught with good or ill to our country.
Supposing the power to pass laws on the subject of fugitive slaves to be concurrent, the learned counsel on the other side contended, that it had been exercised by congress; that the whole ground of legislation was provided for; that the right of the states was thereby superseded, and that the act of assembly of Pennsylvania was absolutely void. To all these positions, he would answer, in addition to what had already been advanced, that congress had not covered the whole ground; that it had expressly intended to employ the agency of state magistrates, which could not be done without state legislation; and that the states, if they had a right to authorize the action of their officers, could do so on such terms as they pleased, if they did not contradict the act of congress. There was no such contradiction or repugnancy in this case, and of course, the argument raised on that presumption totally failed.
He could not, on this branch of the case, fortify his argument with stronger reason or authority than by quoting the words of Mr. Justice STORY, in the case of Houston v. Moore. On this basis, he did not fear to let it rest. 'The constitution, containing a grant of powers in many instances similar to those already existing in the state governments, and some of these being of vital importance also to state authority and state legislation, it is not to be admitted, that a mere grant of such powers in affirmative terms to congress, does, per se, transfer an exclusive sovereignty on such subjects to the latter. On the contrary, a reasonable interpretation of that instrument necessarily leads to the conclusion, that the powers so granted are never exclusive of similar powers existing in the states, unless where the constitution has expressly, in terms, given an exclusive power to congress, or the exercise of a like power is prohibited to the states, or there is a direct repugnancy or incompatibility in the exercise of it by the states.' And also, 'in all other cases not falling within the classes already mentioned, it seems unquestionable, that the states retain concurrent authority with congress, not only on the letter and spirit of the eleventh amendment of the constitution, but upon the soundest principles of general reasoning.'
III. The vital question in this cause seemed to him to be this: whether the state of Pennsylvania could not punish the forcible removal of a negro, in the manner and for the purposes set forth in this special verdict, as a criminal offence, when such removal was made in total disregard of the act of congress, and of her own act of 1826. He need hardly remind the court, that the provisions of the federal constitution under consideration, prescribed that fugitive slaves were to be 'delivered up,' 'on claim.' Both the acts of congress and the legislature of Pennsylvania directed the mode to be pursued in making claim and delivery. It is obvious, that the constitution contemplated two acts-the claim by the master, and the delivery in pursuance of it, by the state where the fugitive was found. One preceded the other; and neither could be available to restore the slave to his master, alone. Under the act of congress, he might 'seize' the slave, but could not remove him, without the certificate of the judge or magistrate. Under the act of 1826, the magistrate may issue his warrant to apprehend the fugitive; but the judge alone can grant the certificate. Under neither can the master remove the slave, without this certificate. It is his only legal warrant of removal, and it is a sufficient warrant throughout the whole Union. A forcible removal is nowhere authorized or countenanced; on the contrary, it can only be a removal under the law, and according to the law. The master, under the act of congress, may 'seize' his slave, but only for the purpose of taking him before a judge. He is protected in making such seizure; but the moment he abuses this right, and in defiance of law, undertakes to remove his slave, without a certificate, he forfeits the protection of the law, and becomes amenable to such punishment as the states may prescribe.
The act of congress punishes those who interfere with the rights of the slave-holder; but is silent as to the rights of negroes wrongfully seized, and of the states whose territory is entered by persons, under pretext of right, to violate the laws and carry forcibly away those who are living under their protection. These cases are clearly left to the guardianship of the states themselves. The tenth article of the amendments to the constitution secures this right; and self-respect, if not self-protection, demands its exercise. It has already been decided, by this court, that persons who violate or disregard the provisions of an act of congress may be made amenable to state law. Houston v. Moore, 5 Wheat. 1; 2 Hamilton's Works 347. This is, not on the principle, that to violate an act of congress is a crime against the state; but that the offence denounced by the laws of the state is not protected by the national authority, and hence may be punished as a crime.
Prigg, the defendant in this case, first sought the aid of the state law, to seize his slave, and then, in contempt of both its mandates and those of the act of congress, removed the fugitive, without making claim, obtaining certificate, or doing anything to procure the warrant of the law. This was a wanton insult to the dignity of the state of Pennsylvania; and tended directly to produce riots, disturbances and ill-blood between her citizens and those of the state of Maryland. Would it not be monstrous, to hold, that an act which leads to such results, which offends so deeply the honest prejudices of large portions of the citizens of a state, is not, or may not be punished as, a crime against her sovereignty and her laws? If such power do not belong to the states, it is difficult to conceive, how any portion of their police arrangements may not at any time be annulled and abrogated by the general government. A more absolute annihilation of the state sovereignties than this would be, is not within the stretch of human power.
It is a familiar principle to the court, that on the ground of repugnancy to the constitution, state laws may be void in part, and valid for the residue. These questions are extremely delicate; and this court will declare laws void for this reason, only in a clear case. Fletcher v. Peck, 6 Cranch 87. If possible, the court will reconcile them with the constitution; and so far as depends on their policy or justice, leave that to the judgment of the people who enact and must obey them. Dismissing from consideration, for the purposes of this argument, the right of the states to pass laws on the subject of the delivery up of fugitive slaves, in what respect does the act of 1826, so far as relates to the punishment of those who are guilty of kidnapping, conflict with the constitution of the United States, or with any act of congress? He thought, he might challenge the utmost ingenuity to point out such conflict. It was clearly the exercise of a reserved power. It only punished those who set all laws on this subject at naught, and by their examples, did more to endanger the rights of the slave-holders in the recovery of their fugitives, than all the state laws ever adopted had done, or could do. Such rash and indiscreet efforts to regain fugitive slaves, as this defendant made, have done much to forment the spirit of opposition to slavery in the north; and if persisted in, will awaken a feeling not easily subdued or controlled. Did the chivalrous and considerate slave-owners of the south come themselves in pursuit of their fugitive slaves, these instances of outrage would seldom, if ever, happen; but the agents often employed by them, are of the most debased character, and being alike ignorant and regardless of law and courtesy, excite, by their conduct, the deepest emotions of indignation and abhorrence. It is against such offenders, that the penal enactment in question is chiefly aimed. Can it be possible, that this court will strike down the arm of state authority, thus uplifted to maintain peace, order and the respectful observance of the law?
The fact that the negro thus forcibly and illegally removed is a slave, is wholly immaterial. It is admitted by the other side, that legislation under the constitution is necessary to carry the provision on this subject of fugitive slaves into effect. If so, the right of removal cannot exist independent of such legislation. Although the slave may be so, in fact, yet he must be identified and certified by the law to be such, to authorize his removal. Until this is done, no presumption of slavery arises. True, it will arise, if 'seized' on 'claim,' and taken before a judge, but not, if removed without this judicial sanction. Here is the true point of the case. The law protects the owner or agent, until he proceeds to remove the slave in defiance of its prohibition. The instant he does this, the crime is committed; the penalty is incurred; the violated law demands its victim. The constitution evidently contemplates the act of the law, and not the act of the party, in the recovery of fugitive slaves; and he who, with a strong hand, usurps the prerogative of the law, and tramples on its mandates, has no right to complain of the punishment it inflicts.
The special verdict in this case distinctly admits, that the act of the defendant is neither sanctioned nor protected by either the act of congress or the legislature of Pennsylvania. It was, therefore, clear, as he believed, whatever might be the opinion of the court upon the broad question of the power of the states to pass laws directing the mode of delivering up fugitive slaves, that the act of Pennsylvania, so far as it affected this case, or was involved in its determination, was not repugnant to the constitution, and that accordingly the judgment of the supreme court of that state must be affirmed.
In conclusion, said Mr. Johnson, the court will allow me to say, that I have argued this case on the presumption that many great rules of constitutional interpretation have been settled by its decisions; and that I have adopted and applied them so far as they appeared applicable, without consuming the time or abusing the patience of the court, by elaborate inquiries into their justice or their authority. I have not deemed it respectful, to address this court as if I were delivering a course of elementary lectures in a law academy. I know my own duty, and the character of this court, too well, to engage in such an undertaking. I feel persuaded that my deficiencies will be far more than supplied by the learning and experience of your honors. I have sought to confine my argument strictly to the case before you, and I hope, within this scope, no points of essential interest have escaped my attention.
I trust, I shall be pardoned, if I again reiterate my conviction, that the construction of the constitution for which I have contended, is the true, rational and just one. Whatever may be the opinion of others, it cannot and will not be plausibly alleged, that this construction violates any of its provisions, or endangers any power vested in either the national or state governments. It offends no prejudices; it trenches on no right; it sets no example to be hereafter pleaded in justification of measures which tend to augment the power of the general government, and to strip the states of their proudest attributes of sovereignty. It binds each in its proper sphere; it invests both with all requisite and proper authority to perform the functions for which they were designed, and it divests this obligation to deliver up fugitive slaves, which, to the sensitive, is harsh and odious, of almost every feature of painful repugnance to the feelings.
But let the picture be reversed: Deny the right of the states to legislate on this subject, for the preservation of their own peace and the protection of their own soil from insult and aggression; aggregate exclusive power for the general government to order and direct how, and by whom, alleged fugitive slaves are to be restored to their masters or hired pursurers, and you arouse a spirit of discord and resistance, that will neither shrink nor slumber, till the obligation itself be cancelled, or the Union which creates it be dissolved. I do not say this in menace: God forbid I should! but in expostulating warning, to those who, by demanding too much, may sacrifice even that to which they are justly entitled.
The various, diversified and almost antagonist interests of different sections of our Union, render government here a task of no small caution, forbearance and responsibility. Time and experience have emphatically taught us, that there is but one mode in which these interests can be effectually guarded and promoted; and that is, by a strict, steady and undeviating adherence to the spirit and letter of the national constitution. The events of every day, and every year, invest the constitution with additional claims to our veneration. Its advantages seem to multiply with our necessities, and to spring out of them. It would not be difficult, in the course of our history, to point out particular instances, in which different quarters of the Union, influenced by adverse interests, have sought to apply opposing constructions to the same provisions, on assumed general, strict or latitudinarian principles; and yet, in a very brief period of time, constructions of other provisions have compelled these sectional parties to change their respective ground, and to repudiate what they had before adopted. These considerations rebuke the spirit of self-confidence and of self-interest, and admonish us, that in the end, that construction is the only sound, rational and safe one, which encroaches on no peculiar interest, and which sustains all alike, with even-handed justice. Let the south and the north remember, that he who lives by the sword to-day, may die by the sword to-morrow. Then, indeed, may we read the constitution in the benign spirit of the golden rule, to do 'unto others, as we would that they should do unto us.'
The framers of our glorious constitution, appear to have been little less than inspired. They not only guarded the liberties of their own age, but they looked into futurity, and provided for the liberties of ages to follow them-constitutional indemnities which must then have been established, or never established at all. The day to intrench political freedom within a written constitution, was the day when the fresh recollection of the revolutionary contest not only taught its value, but the duty of placing it beyond the reach of invasion; and our fathers, conscious of this truth, performed the duty devolved on them, in a manner worthy of its inestimable importance. The most skeptical must trace the finger of God in this work; and acknowledge that he has sanctified it in the councils of his Providence. It is adapted to our condition in every stage of our national advancement. From the Atlantic to the Pacific oceans, and from the lakes to the borders of Mexico, it has stretched forth its cherishing arm over our people, and diffused its blessings on all alike. It has 'grown with our growth, and strengthened with our strength;' it was the swadding clothes of our national infancy; it is the coat of mail that envelopes the giantlimbs of our national manhood. Changed as is our condition, modified as may seem our government in various matters of policy; the constitution of our fathers is still, solid and entire, the constitution of their descendants. If we would preserve it, if we would perpetuate its benefits, we must, in its interpretation, adhere with inflexible tenacity to that spirit of generous and enlightened concession in which it had its origin, which now and for ever must be its breath of life. It is equally endangered by straining its just powers too far, as by crippling their operation, and shrivelling up the vigorous energies which alone make it a form of government capable or worthy of popular confidence and support. To claim for it, what is withheld exclusive authority to legislate on the delicate subject of directing the delivery up of fugitive slaves, to the entire exclusion of state interposition, seems to me the rankest usurpation. In resisting this doctrine, I verily believe, I stand here more as the true friend of the south, than those who honestly, but erroneously, urge it upon the court. In the name, then, of Pennsylvania, in the name of all the states-in the name of the Union itself-I protest against this dangerous encroachment on state sovereignty and state independence. The long and impatient struggle on this question, I trust is nearly over. The decision of this court will put it at rest.
Pennsylvania will be the first to acquiesce in whatever decision may be pronounced; and deeply and anxiously as she desires to see all the rights guarantied to her by the national constitution steadfastly maintained, she submits, with a confidence that knows no fear, these rights, which are equally dear to every sister state as they are to her, to the judgment of this high and enlightened tribunal.
STORY, Justice, delivered the opinion of the court.
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