Prigg v. Pennsylvania

Mr. Justice Daniel.

Concurring entirely as I do with the majority of the Court,,in the conclusions they have reached relative to the effect and validity of the statute of-Pennsylvania now under review, it is with unfeigned regret that I-am constrained to dissent from some of the principles and reasonings which that majority in passing, to our commpn conclusions, have believed themselves called on to affirm.

*651 In judicial proceedings generally, that has been deemed a safe and prudent rule of action, which involves no rights, nor. questions not necessary to be considered; but leaves these for adjudication where, and when, only, they shall he ^presented. directly and unavoidably, and when surrounded with every circumstance which can best illustrate their character. If, in ordinary .questions of private interest, this rule is recommended by considerations of prudence, and accuracy,' and. justice; it is surely much more to be observed, when the subject lb which it is applicable is the-.great fundamental law of the confederacy: every clause. and article of which affects the polity and the acts of states.

. Guided by the rule just mentioned, it seems to me that the regular action of the Court in this case.is limited to an examination of the . Pennsylvania' statute, to a comparison of its provisions with the third clause of the fourth article of the Constitution,, and with the act of Congress of. 1793, with which the.law of Pennsylvania is alleged to be in'conflict; and that to accomplish these purposes, a general definition of contrast of the powers of the state and federal governments,' was neither requisite nor próper. The majority of my brethren, in the conscientious discharge of their duty, have thought themselves bound to pursue a different course ; and it. is in their definition and distribution of state and federal powers, '.and in the modes and times they have assigned for' the exercising . those powers, that I find myself compelled to differ with them.

That portion ofthe.Constitution which provides for the recovery of fugitive slaves, is ..the third clause of. the second section of the fourth article; and is in these words: “No person held to service or labour in one state under the laws thereof, escaping into another, shall in consequence of any law or regulation, therein, be. discharged from such service or labour; but shall be delivered up on claim of the party-to whom such service or labour- may be due.” The paramount authority of this clause in the Constitution to guaranty to the owner the right of property in his slave, and the absolute" nullity of any state power directly of indirectly, .openly or covertly, aimed to impair that right, or to. obstruct, its enjoyment; I admit, nay, insist upon to the fullest extent. I contend, moreover, that the act of 1793, made in aid of this clause of the Constitution and for its enforcement, so far as it conforms to the Constitution is the supreme law to the states; and cannot *652 be- contravened by them without a violation of the Constitution. But the majority of my brethren proceeding beyond these positions, assume the ground that the clause of the Constitution ab'ove quoted, as, an affirmative power granted by the Constitution, is essentially an exclusive power in the federal government; and consequently that' any and every exercise of authority'by the states at any time, though undeniably in aid of the guarantee thereby given,,is absolutely null and void...

- Whilst I am free to admit the powers which are exclusive in the federal government, some of them became so denominated by the express terms of the Constitution; some because they are prohibited to the states; and others because their existence, and much more their practical exertion by the two .governments, would be repugnant, and would neutralize if they did not conflict w ith and destroy each other: I cannot regard the third clause of the fourth article as falling either within the definition or meaning of an- exclusive power. Such a power, I,consider as originally and absolutely, and at all times incompatible with partition or association. It excludes every thing but itself.

There is a class of powers originally vested in the states, which by the theory of the federal government have been transferred to the latter; powers which the Constitution of itself does not execute, and which Congress may or may not enforce either in whole or in part, according to its views of policy or necessity; or as it may find them for the time beneficially executed or otherwise under the state authorities. These are not properly concurrent, but may be'denominated dormant powers in the federal government; they may at any time be awakened into efficient action by Congress, and from that time so far as they are called into activity, will of course displace the pow.ers of the states. But should they again be withdrawn or rendered dormant, or should their primitive exercise by the states never be interfered with by Congress; could it be properly said that because 'they potentially existed in Congress they were therefore denied to the states ? The prosperity, the nec'essities of the country, and the soundest rules of constitutional construction, appear to me to present a decided negative to this inquiry. Nay, I am prepared to affirm, that even in-instances wherein Congress may have legislated, legislation by a state which is strictly ancillary, would not be unconstitutional or improper.

*653 The interpretation for which Í contend cannot be deemed a novelty in this Court; but rests upon more than one of its decisions upon the constitutional action of state authorities. In the case of Sturgis v. Crowninshield, which brought in question the right of ¡the states to pass insolvent or bankrupt laws,. Chief Justice Marshall holds the following doctrine, 4 Wheat. 192 , 193: “ The counsel for the-plaintiff contend that the grant of this power to Congress without limitation, takes it entirely from the states. In support of this proposition, they argue, that every power given to Congress is necessarily supreme ; and if from its nature, or from the words of the grant, it is apparently intended to be exclusive, it is as much so- as if they were expressly forbidden to -exercise it. These propositions have been enforced and illustrated by many arguments drawn from different parts of the Constitution. That the power is both unlimited and supreme, is not questioned. That it is exclusive, is denied by the counsel for the defendant. In considering this question, it must be recollected... that previous to the formation of the new Constitution, we were divided, into independent states, united for some purposes, but in most respects sovereign; These states could exercise almost every legislative power; and amongst others, that of passing', bankrupt laws. When the American people created a national legislature with certain enumerated powers, it was neither necessary nor proper to define the powers retained by the states. These powers remain as they were before the adoption of the Constitution, except so' far as they may be abridged by 'that instrument. In some instances, as in making treaties, we find an express prohibition; and this shows the sense of the convention to have been that the mere grant of a power to Congress did not imply a prohibition on the states to the exercise of the same power.” Again,'p. 198, “It does not appear to be a violent construction of the Constitution, and is certainly a convenient one, to consider the powers of the.states as existing over such cases as the laws of the Union do not. reach. Be this as it may, the power of Congress may be exercised or declined, as the wisdom of that body shall decide. It is not the mere existence of the power, but its exercise, which is incompatible with the exercise of the same power by the states. It has been said that Congress has exercised this power; and by doing so, has extinguished the power of the states, which cannot *654 be revived by repealing the- law of Congress. We do not think so. If the right of the states is not taken away .by the mere grant of that power- to Congress, it cannot be extinguished; it can Only be suspended by enacting a general bankrupt law. The repeal of that, cannot, it is-true,- confer the power on the states.;, but-it 'removes a disability to its exercise, which was created, by the act of Congress,”'

'In-'the case, of- Houston v. Moore, 6 Wheat. 48 , the following doctrine, was held by Mr. Justice Story, and in accordance with ■the opinion of the' Court, in - that case, “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 powers, in affirmative terms, to Congress, does, per se, transfer an exclusive sovereignty irf 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; except where the Constitution has, in express terms, given an exclusive power-to Congress,1 or the exercise of a like power is prohibited to thé states. The example, of the first blass is to be found in the exclusive legislation delegated to Congress over places purchased by-the consent of the legislature of the state in which the same shall.be, for forts, arsenals, dock-yards, &c.of the second class, the'prohibition . of.a state tocoin money or emit bills of credit: — of the third class, as this Court have already held; is the power to establish arruniformt rule of naturalizationand the delegation of admiralty and ■maritime jurisdiction. •• In all other cases not falling within the classes already mentioned, it seems unquestionable that the states retain concurrent authority with Congress,- not. only under the eleventh amendment of the Constitution, but upon the soundest principles of general reasoning. There is this reserve, however, that in cases of concurrent authority, where the laws of the states and of the Union are in direct and manifest collision on the same subject;, those of the Union being the supreme law of the .land, are/of paramount authority; and-the state laws, so far, and so far only, as such incompatibility exists, must necessarily yield. ' Such are the general principles by which my judgment' is guided, in *655 every - investigation of constitutional points. They commend themselves by their intrinsic equity; and have been amply justified' by the great men under whose guidance the Constitution was framed/ as Well as by the practice of the government of the Union. To des.ert. them, would be .to deliver■'ourselves over to endless doubts and difficulties; and probably to hazard the existence of the Constitution itself.”

In the case of the City of New York v. Miln, 11 Peters, 102 , Mr. Justice Barbour, in delivering the opinion of the Court, lays down the following position, (p. 137,) as directly deducible from the decisions in Gibbons and Ogden, 7 Wheat. 204 , and Brown and the State of Maryland, 12 Wheat. 419 : “Whilst a state is acting .within the legitimate scope of its power, as to the end to be attained, it may use whatever means being appropriate to that end, it may think' fit; although they be the same, or so nearly the same as scarcely to be distinguished from those adopted by Congress acting under a different power; subject only to this limitation, that in Hie event of collision, the law of the state must yield to the law of Congress. The Court .must be understood, mf course, as meaning.that the Jaw of Congress is passed upon, a subject within the -sphere of its power.” ' In the same case, the following language is held by Mr. Justice Thompson, p. 145: “ In the leading cases upon this question, where the state law has been held to be constitutional, there has been an actual conflict between the legislation of Congress and that of the states, upon the right drawn in question. And in all such cases, the law of Congress is- supreme. But in the case now before the Court/ no such conflict arises; Congress has not legislated on this subject in any manner to affect the question.” And again, p. 146, it is said by the same judge; “ It is not necessary in this case to fix any limits upon the legislation of Congress and of-the states on this subject; or to 'say how far Congress-may, under the power to regulate commerce, control state legislation in this -respect. It is enough -to say, that whatever the power of Congress may be, it has not been exercised so as in any manner to conflict with the state law; and if the mere grant of the power to Congress does not necessarily imply a prohibition of the states to exercise the power until Congress assumes the power to exer cise it, no objection on that ground can arise to*this law.”

*656 Here then are recognitions, repeated and explicit, of the propriety,. utility, and regularity of state action, in reference to powers confessedly vested in the general government, so long as the latter remains passive, or shall' embrace within its own action, only a portion of its powers, and that portion not comprised in the proceedings of a state government; and so long as the states shall neither'Conflict'with the measures of the federal government, nor contravene its policy. 'From these recognitions,it must follow by necessary consequence, that powers vested in the federal government which are compatible with the modes of execution just adverted to, cannot be essentially and originally, nor practically, exclusive powers; for whatever is exclusive, utterly forbids, as has been previously observed, all partition or association. I hold then that the states can establish proceedings which are in .their nature calculated to secure the rights of the slaveholder guarantied to him by the Constitution; as I shall attempt to .show, that those rights can never be so perfectly secured, as when the states shall, in good faith, exert their authority to assist in effectuating the guarantee given by the Constitution. Fugitives from service, in attempting to flee either to the noh-slavéholding states, or into the Canadas, must, in many instances, pass the intermediate states, before they can attain'- to the point they aim at.

If there is a powér in the states to authorize and order their arrest and detention for delivery to, their owners, not only will the probabilities of recovery be increased by the performance of duties enjoined by law upon the citizens of those states, as well private persons as those who- are offlcers of the law; but the incitements of interest, under the hope of reward, will in a certain' class of persons powerfully co-operate to the same ends. " But let it be declared that the rights of arrest and detention, with a view of restoration to the owner, belong solely to the federal government, exclusive of the individual right of the owner to seize his property, and what are to be the consequences ? In the first place, whenever the master, attempting to enforce his right of seizure under the Constitution, shall meet with resistance, the inconsiderable number of federal officers in a state, and'their frequent remoteness from the theatre of action, must, in numerous instances, at once defeat his right of property, and deprive him *657 also of personal protection and security. By the rempvalof every incentive of interest in state officers, or individuals, and by, the inculcation of a belief that any co-operation with the master be-, comes a violation of law, the most active and efficient auxiliary which he could possibly-call to his aid is entirely neutralized. Again, suppose that a-fugitive from service should have fled to a state where slavery does not exist, and in which the prevalent feeling is hostile to .that institution; there might, nevertheless, in such a community,, be a disposition to yield something to san acknowledged constitutional right — something, to national comity too, in the preservation of that right; but let it once be proclaimed from this tribunal; that any concession by the states towards the maintenancé 'of such a right, is a positive offence, the.violation of a solemn duty, and I ask what pretext more plausible could be offered to those who are disposed to. protect the fugitive, or to defeat the rights of the master ? The Constitution and the act of Congress would thus be converted-into instruments for the destruction of that which they were designed especially to protect. But it is said that if the states can legislate at all upon the subject of fugitives from service, they may, under the guise of regulations for securing the master' right, enact laws which, in reality, impair or destroy them. This, like .every other argument drawn from the possible abuse of power, -is deemed neither fair nor logical. It is equ. ly applicable to the exercise of power by the federal-as by the state governments; and might be used in opposition to all power and all government, as it is undeniable, that there is no power and no government which is not susceptible of great abuses. But’ those who argue from such possible or probable, abuses against all regulations 'by the states touching this matter, shoitld. dismiss their apprehensions, under the recollection that should those abuses be attempted, the corrective may be found, as it.is now about to be applied to some extent, in the controlling constitutional authority of this Court.

It has been said that the states in the exercise of their police powers may arrest and imprison vagrants or fugitives who may endanger the peace and good order of society; and by tha.t means • contribute to the recovery by the master of-his fugitive slave. It should be recollected, however, that the police power of a state has no natural affinity with her exterior relations, nor wi h those *658 which she sustains to her .sister states; but is confined to matters strictly belonging' to her internal order and quiet. The arrest or confinement, or restoration of a fugitive, merely because-he is such, falls not regularly within the objects of police regulations; for such- a person may be obnoxious to no charge of- violence or disorder; he may be merely.passing through the state peaceably and quietly; or he may be under the care and countenance of some person affecting ownership over him, with-the very view of facilitating his escape. • Under- such circumstances, he would not be a proper subject for the exertion óf the police power; and if not to be challenged under a different power-in the-state, his escape would be inevitable, however strong- might be the evidences of his being a fugitive. But let it-.be supposed that either .oh aceóunt of some -offence actually committed, or threatened; or from-some internal regulation -forbidding, the presence of such persons within a state, they may- be deemed subjects for the exertion of the police power-proper, to what, end would the exercise óf that power naturally lead ? Fugitives might be arrested for -punishment, or they might be expelled or deported from the •state. Nothing beyond these could be legally accomplished; and thus the invocation of this police power, so far from securing the Tights of the master, would be made an engine to insure the deprivation of his property. - Such are a portion of the consequences which, in my opinion, must flow from the doctrines affirmed by the majority of .the Court: - doctrines in my view not warranted by the Constitution, nor by the interpretation heretofore given of that instrument; and the assertion whereof seemed not to have been necessarily involved in the adjudication of this cause. With the convictions predomiuatory in my mind as to the nature and tendencies of these doctrines; whilst I cherish the pro'foundest respect for the wisdom and purity of those who maintain them; it would be,a dereliction of duty in-me to yield to them a direct or-a tacit 'acquiescence; I therefore declare my dissent from .them.

Mr. Justice M‘Lean.

As this case involves questions deeply' interesting, if not vital, to the permanency of the union of these states; and as I differ on one point from the opinion of the Court, I deem it proper tp state my own views on the subject.

*659 The plaintiff, Edward Prigg, was indicted under the first section of an act of Pennsylvania, entitled “ An.act to give effect to the provisions of the Constitution of the United States, relative to fugitives from labour, for the protection of free people of colour, and to prevent kidnapping.*’

. It provides, “ If any person or persons shall, from and after'the passing'of this act, by force and'violence, take and cariy away, or. cause to be taken or carried away, and shall by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away, or seduce any negro' or mulatto from any part or parts of this commonwealth, to any other place or places what'sbever, out of this commonwealth, with a design and intention of selling and disposing of, or of causing to-be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto as a slave or servant for life, or for any term whatsoever; every such person Or persons, his or their aiders or ’abettors shall, on conviction thereof, be deemed guilty offfelony, and shall be fined in' a sum not less than five hundred nor more than one thousand dollars,, and shall be sentenced' to imprisonment and hard,labour hot less than seven nor more than twenty-one years.”

The plaintiff being a citizen '’of Maryland, with others, took Margaret Morgan, a coloured tvoman, and a slave, by force and violence, without the certificate required by the act of Congress, from the state of Pennsylvania, and brought her to the state qf Maryland. By an amicable arrangement between the two states, judgment was entered against the defendant, in the Court where, the indictment was found; and on the cause being removed to the Supreme Court of the state, that judgment, pro forma, was affirmed. And the case is' now here for our examination and decision..

. The last clause of the second section of the fourth article of the Constitution of the United States, declares that, “No person held to service or labour in one state, under the laws..thereof, escaping into another, shall, in consequence of any’law or regulation therein, be discharged from such service or labour; but shall be delivered, up. on ‘ claim of .the party to whom such service or labour may be due.”

, This clause of the Constitution is now, for the first time, brought before this Court for consideration.

*660 That the Constitution was adopted in. a spirit of compromise, is matter of history. And all experience shows that to attain the great objects of this fundamental law, it must be construed and enforced in a spirit of enlightened forbearance and justice. ¡Without adverting to other conflicting views and interests of the states' represented in the general convention, the, subject of slavery was then,'as it is now, a most delicate and absorbing consideration. In some of the states, it was considered an evil, and a strong opposition to it, in all its forms, was felt and expressed. In others it was viewed as a cherished right, incorporated into the social compact, and sacredly guarded by law.

Opinions so conflicting, and'which so deeply pervaded the elements of society, could be brought to a reconciled action only, by an exercise of exalted patriotism. Fortunately for the country, this patriotism was not wanting in the convention'and in the states. The danger of discord and ruin was seen, and felt, aftd acknowledged; and this led to the formation of the'confederacy. The Constitution, as it is, cannot be said to have imbodied in all its parts, the peculiar views.of any great section of the Union; but it was adopted by a wise and far-reaching conviction, that it was the best which, under the circumstances, could be devised; and that its imperfections would be lost sight of, if not forgotten,in the national prosperity and glory which it would secure.

A law is better understood by a knowledge of the evils which led. to its adoption. And this applies most strongly to. a fundamental law.

At an early period of our history, slavery existed in all the colonies; and fugitives from labour were claimed and delivered up under .a spirit of comity or conventional law among the colonies. . The articles of confederation contained no provision on the subject, and there can be no doubt that the provision introduced into the Constitution was the result of experience and rpanifest necessity. A matter so delicate, important, and' exciting, was very properly introduced- into the organic law.

- Does the provision, in' regard to the reclamation ■ of fugitive slaves, vest the power'exclusively in the federal government?

This must be determined from the language of the Constitution,, and the nature of the power.

The language of the provision is general. It covers the whole *661 ground, not in detail, but in principle. The states aré inhibited from passing “any-law or regulation which shall discharge a fugitive, slave from the service of his master;”, and a positive duty is enjoined on'them to deliver him up, “ on claim of the' party to •whom his service may be due.”

The nature of the power shows that it must be exclusive.

It was designed to protect the rights of the master, and against whom? Not against the state, nor' the people of the state in which he resides; but against the people and the legislative action of other states where the fugitive from, labour might be found. Under the confederation, the master had no legal means of enforcing his rights in a state opposed to slavery. A disregard of rights thus asserted was deeply felt in the south. It produced great excitement, and would, have led to results destructive of the Union. To. avoid this, the constitutional guarantee was essential.

The necessity for this provision was found in the views and feelings of the people of the states opposed to slavery; and who, under such an influence, could not be expected favourably to regard the rights of the master. Now, by whom is this paramount law to be executed ?

.It is contended that the power to execute it rests with the states. The law was designed to protect the rights of the slaveholder against the states opposed to those rights; and yet, by this argument, the effective power is in the hands of those on whom it is to operate.

This would produce a strange anomaly in the history oi legislation., It would show an inexperience and folly in the venerable framers of the Constitution, from which, of all public bodies that ever assembled, they were, perhaps, most exempt.

The clause of the Constitution under consideration declares that no fugitive from labour shall be discharged from such labour, 'by any law or regulation of . the state into which he may have ' fled. Is the state to judge of this ? Is it left for the state to de termine what effect shall be given to this and other parts of the provision ?

This power is not susceptible of division. It is a part of the fundamental- law, and pervades, the Union. The rule of action which it prescribes was- intended to be. the same in all the states. This is essential to the attainment of the objects -of the *662 law. ' If,the effect of it depended, in any degree, upon .the. construction, of a state by .legislation or otherwise, its spirit, if .not its letter, wpuld.be disregarded. This would not procep.d from any settled determination in any state to-violate the fundamental rule; but from habits and modes of reasoning.on the subject. Such,is the diversity, of -hüman, judgment, that opposite conclusions equally honest, are often drawn from the same premises. If -is, therefore, essential to the- uniform efficacy of this constitutional provision that it should be considered, exclusively, a federal-power, It is in its nature as much so as the power to regulate cpmmerce, or that of foreign intercourse.

' To give full effect.to this provision,-was legislation necessary ? Congress, by the passage of the act of 1-793,legislated on the sub-, ject, and this shows how this provision-was- construed shortly after its adoption: and the reasons- which were deliberately, considered, and which led to the passage of the act, show clearly that it was necessary! These reasons will be, more particularly-referred to under another head of the argument. But looking only at the. Constitution, the propriety, if riot the ’necessity of legislation.is seen..

The Constitution provides' that the fugitive from labour, shall be delivered up, on claim beirtg inade by the person 'entitled to such labour; but it is silent.as to how and on whom this claim shall be made: The act of Congress provides for this defect and uncertainty, by,establishing the mode of procedure.

It is contended, that the power to legislate, on this .subject is concurrently in the states and federal government. -..That the acts of the latter are paramount, but that the acts of the former must, be regarded as of authority, until abrogated by the federal .power. How a power exercised by one sovereignty can be called concurrent, which may be abrogated by another, I cannot comprehend. A concurrent power,' from its nature, I had supposed must be equal. If the federal government by legislating on the subject annuls all state legislation on the same subject, it must follow that the power is in the federal government and not in the state.

Taxation, is a power common to a state and the general government, and it. is exercised by each .independently of the other And this must be. the character of all concurrent, powers.

It is said that a power may be vested in the federal govern *663 tnent which reináin'S dormant,-arid that in such case a state may legislate on the subject. In the case supposed,' whence does the' legislature derive its power ? Is it derived from, the -constitution of the state; or the Constitution. of .-the United States ?

Jf the power' is given by the state constitution, it -must follow thaf-it may be exercised independently of the federal'po.we'r; for it is presumed no one will sanction the doctrine that Congress, 'by legislation, may abridge the constitutional power of a state.

How can the power of' the state ;be derived from- the federalConstitufion ? Is it assumed on -the ground that Congress- having the power-have failed to exercise it? Where is suedanassrimption to.end ? May it not be applied with equal force and propriety to the whole ground of federal legislation; excepting only the powers inhibited to the states ? Congress have not legislated upon a-certain subject, but this does riot show that they may not have duly Considered it. Or, they may-have acted without'.e'xhausting'the power. Now, in my judgment, it is illogical and unconstitutional to hold.that-ineither of these' cases a state .may .legislate.

Is this a vagrant power of-the "state, like a floating lana warrant to be -located on the hrst vacant spot that shall be found? May a state occupy a fragment of federal power- which has not been exercised, and like a tenant at will, continue to- occupy it until it shall have notice to quit ?

• No-such- power is-derived by implication from'the federal Constitution. It defines the powers of "the genera! government, and imposes certain restrictions and duties on the states. But beyond this it in no degree affects the powers of the states.' The powers which belong to a state are exercised independently. In its sphere of sovereignty it.stands on- an-equality with the federal government, and is' not subject to its control. It- would be as dangerous as humiliating to the rights of a state, to hold that it legislative powers were exercised to any. extent and under anj • circumstances, subject to the paramount action of . Congress.. Sdch a doctrine would lead to serious arid-dangerous conflicts of power.

The act of 1793 seems to cover the whole constitutional ground. The third section provides, “That -when a person -held to labour, in' any state or territory of the United 'States,- under the laws *664 thereof, Shall escape into any other of the said states or territories, the person-to whomsuch labour or service maybe due, his'agent or attornéy, is empowered to seize or arrest such fugitive from labour, and to take him or her-before any judge of the Circuit or District Courts of-the United'States residing or’being within the state, or before any magistrate of a county, city, or town corporate, wherein'such seizure or arrest shall be made, and upon proof, to the satisfaction, of such Judge or magistrate, either by oral testimony or affidavit, ,&c., that the person so seized or arrested, doth, under' the laws of the' state or territory from which .he or she fled, owe' service or labour to the person claiming him orher, it shall fre-the duty of such judge or magistrate to give a certificate thereof; to such claimant, his agent, or attorney, which shall be sufficient warrant for removing said- fugitive te the state from "which he or she fled ”

The fourth section imposes a penalty-on -any person, who shall obstruct or hinder siich claimant, his agent; or'attorney, &c., or shall rescúé such -fugitive, when só arrested, &c.

It seems to be taken as a conceded point in' the argument, that Congress had no power to impose duties on state officers, as provided in the above act. •. As.a .general principle this is true; but does not the case under consideration form an exception ? Congress can no' more regulate the jurisdiction of the state tribunals, than a state -can define the judicial power of the Union. The officers of' each government are responsible only to the respective authorities under which they are commissioned. But do' not the "clauses in the Constitution in regard to fugitives from labour, and from justice, give Congress a power over state officérs, on these subjects?' The’ power in both-the cases is admitted or proved to be exclusively in the federal government.

The clause in the- Constitution preceding the one in relation to fugitives from labour, declares that, “A person charged in any state -with treason, felony, of other crime, who shall- flee from justice, and be found in another state, shall, on demand of the executive authority of the state from which he flecl; be delivered up to -be removed to the' state having jurisdiction of the crime.”.

In the'first section of the act of-1793, Congress have provided that on demand being made as above, “it shall be the duty of *665 the.executive.authority to cause the person demanded to.be arrested, &c.

The constitutionality of this law, it is believed, has. never been questioned. It has been obeyed by,the governors of.st.ates; who Have uniformly acknowledged its obligation. • To some demands-surrenders - have not .been made; but the refusals have', in no instance,.been on the ground that .the. Constitution apd act of Congress were of no binding force. Other reasons have been assignéd.

Now, if Congress may by legislation require this duty to be performed by the highest state officer, may they not on the same principle require appropriate duties in regard to the surrender of fugitives from labour, by other state officers; Over these subjects the constitutional .power is the same.

In both cases-the act. of 1793'"defines On'what evidence the, delivery shall be made.- This was necessary, as the Constitution is silent on .the subject. The act' provides that on claim being made of a fugitive from- labour,. “ it Shall be. the duty of such judge or magistrate to- give a certificate that the person claimed owes'services to the claimant.”

The Constitution requires “ that such person shall' be delivered up, on claim of the party to .whom the service is due.” - Here is a positive dutjr imposed; and Congress have, said in what mode this duty shall be performed... Had they not power to do so? • If the Constitution-was designed, in. this respect, to require, not a negative but a positive duty on the state and the people of the state where the -fugitive from labour may be found;. of which, it would seem, there can be no doubt; it must be equally clear that Congress may prescribe in what manner the claim and surrender shaH'be.made. Iam therefore brought t<? the conclusion that, although, as a general principle, Congress cannot impose duties on state officers, yet, in the cases of fugitives from labour and from justice, they have the power to do so.

In the case-of Martin’s Lessee v. Hunter, 1 Wheat. Rep. 304 , this Court say, “ The language of the Constitution is imperative On the. states as-to the performance of many duties.. .It is imperative on the state legislatures to make laws-prescribing the time, place, and manner of holding elections -for senators and representatives, and for electors of President and Vice President. And in these as *666 well as in other cases, Congress have a right to revise, amend, 01 sü ■ persede the laws, which may be passed by the state legislatures.”

Now; I do not insist on the exercise of the federal power to the extent as here laid down. I go no farther than to say, tha.t where the Constitution' imposes a positive duty on a state or- its officers to surrender fugitives, that Congress may prescribe the mode of proof, and the duty of the state officers.

This power may be resisted by a state, and there is no means •pf coercing it. In this view the power may be considered an important one. So the Supreme Court of a state may refuse to certify its. record on a writ of error to the. Supreme Court of the Union, under the twenty-fifth section of the judiciary act. • But resistance tú a constitutional authority-by any of the state functionaries, should not be anticipated; and if made, the federal government may rely upon its own agency in giving effect to the laws.

I come now to a most delicate and important inquiry in this case, and that is, whether the claimant of a fugitive, from, labour may seize and remove him by force out of the state in which he may be found, in .defiance óf its laws. I refer not to-laws which are in conflict with the Constitution, or the act of 17,93. Such state laws, I have already .said, are void. But I have reference to those laws WhicfU regulate the police of the state, maintain.the peace'of its citizens, and preserve its territory and jurisdiction from acts- of violence.

About the time of the adoption of the Constitution, a coloured man. was seized by several persons in the state of Pennsylvania, and forcibly removed out of it, with the intent, as charged, to enslave him. This act was then, as it is now, a criminal offence by the law .of Pennsylvania. Certain persons were indipted for this offence, and in the year 1791, the Governor of Pennsylvania demanded, of the Governor of Virginia, the persons indicted; as fugitives from justice.

The Governor of Virginia submitted the case to the attorney-general of that state, who decided, that the offence charged in the indictment was not,, such, a crime as- under the "Constitution required á surrender. He also. held/“ that control over the persons charged ought pot to. be acquired by any force not specified and. delegated by positive law.” The Governor of Virginia refused- *667 to arrest the defendants, and deliver them to the. authorities of Pennsylvania. / The correspondence- between the governors and the opinion of the attorney-general'of Virginia, with.other papers relating, to.the casé,'were transmitted to the'President of the United States/who laid them before Congress. And there can be-no doubt that this correspondence, and the forcible removal of the coloured person, which gave rise to it, led to the passage of the act of 1793.

It is riot unworthy of remark; that á controversy on this. subject should first have'arisen after the adoption of--the Constitution, in Pennsylvania; and that after a lapse pf more than half a century, a controversy involving a similar act of violence should-he brought before this Court, for the first time,'from the same state

Both the' Constitution and the act of1793,j require the fugitive from labour to be'delivered up on claim being' made; by theparty of his agent, to whom the service is due'. • Not that a suit -should be regularly instituted. ' The proceeding authorized'by the law is summary and informal. Thte.fugitive is seized, by the'cla'imant, and taken before a judge or magistrate .within the state, and' on proof, parol or written, that he oWes labour to the-claimant, it is made the duty of .the judge or magistrate to give the- certificate, which authorizes the' removal of the. fugitive to- the state 'from whence he.absconded.

■ The'counsel inquire of whom the claim shall be made.: And they represent that tpe fugitive, being at large in the -state, is inf he. custody of no one, nor under the protection of--the state ;', so that the claim cannot be made, and conseqhently that the claimant may seize the fugitive, and rerhove him- out of the state.

.A perusal of .the act of Congress obviates this difficulty, and the consequence which is represented as growing out of it.

The apt is framed to .meet the supposed case.’ The.-fugitive is presümed-to be at large,:for- the claimant is' authorized to seize him. After seizure', he is in custody;’ before.it, he was riot. And the claimant js required to take him before a judicial officer of the state; and it is .before such officer -his claim is to be made.

To, suppose, that' the claim is not to be made, and indeed carinot be Unless the fugitive be m the custody or possession of some public officer or individual, is .to disregard trie-letter and spirit of the act of 179"3. There is no act in the., statute book more pre *668 cise in its language; and, as it would-seem, less liable to misconstruction. In my judgment, there is not the least foundation in the act for the right asserted in the argument, to take the fugitive by force and remove him out of the state.

■Such a proceeding can receive no sanction under the act, for it is in express violation of it. The claimant having seized the fugitive, is required by the act to take him before a federal judge within the- state, or a state magistrate within the county, city, or town corpqrate, within which the seizure was made. Now, can there be any pretence that after the seizure under the statute, the claimant may .disregard the other express provision of it, by taking the fugitive without claim out of the state. But it is said, the master may seize his slave wherever he finds him, if by doing so he does not violate the public peace ; that the relation of master and slave is not affected by the laws of the state, to which the slave may have fled, and where he is found.

If the master has aright to seize and remove the slave without claim, he can commit ho breach of the peace by using all the force necessary to accomplish his object.

It is admitted that the rights of the master, so far as regards the services of the slave, are not impaired by this change ; but the mode of asserting them, in my opinion, is essentially modified. In the state where the service is due, the master needs no other law than the law of force to control the action of the slave. But can this law be applied by the master in a state which makes the act unlawful ?

Can the master seize his slave and remove him out of the state in disregard of its laws, as he might take his horse which is running at large ? This ground is taken in the argument. Is' there no difference in principle in these cases ?

The slave, as a sensible and human being, is subject to the local authority into whatsoe er jurisdiction he may go. He is answerable'under the laws for his acts, and he may claim their' protection. The state may protect him against all the world except the claim of his master. Should any one commit lawless violence on the slave, the offender may unquestionably be punished ; and should the slftve' commit murder, he may be detained and punished fox it by the state, in disregaid of the claim, of - the *669 master. Being within the jurisdiction of a state, a slave bears a very different relation to it from that of mere property.

In a state where slavery is allowed, every coloured person is presumed to be a slave; and on the same principle, in a nonslaveholding state, every person is presumed to be free without regard to colour. On this principle, the states, both slaveholding and non-slaveholding, legislate. The latter may prohibit, as Pennsylvania has done under a certain penalty, the forcible removal of a coloured person , out of the state. Is such law in conflict with the act of 1793 ?

The act of 1793 authorizes a forcible seizure of the slave by the master, not to take him out of the state, but to take him before some judicial officer within it. The act of Pennsylvania punishes a forcible removal of a coloured person out of the state. Now, here is no conflict between the law of' the state and the law of Congress. The execution of neither law can, by any just interpretation, i'n my opinion, interfere with the execution of the other. The laws in this respect stand in harmony with each other.

It is very clear that no power to seize and forcibly remove the slave without claim is given by the act of Congress. Can it be exercised under the Constitution? Congress have legislated on the constitutional power, and have, directed the mode in which it shall be- executed. The act, it is admitted, covers the whole ground; and that it is constitutional there seems to be no reason to doubt. Now, under such circumstances, can the provisions of the act be disregarded, and an assumed power set up under the Constitution ? This is believed to be wholly inadmissible by any known rule of construction.

The terms of the Constitution are ge tal, and like many other powers in that instrument require legislation. In the language of this Court in Martin v. Hunter, T-Wheat. Rep. 304, “the powers of the Constitution are expressed in general terms, leaving to the legislature, from time .to time, to adopt its own means to effectuate legitimate objects, and to mould and model the exercise of its powers, as its own wisdom and the public interests should require.”

This, Congress have done by the act of 1793. It gives a summary and effectual mode of - red ess te the master, and is he not *670 bound to pursue it ? It is the legislative, construction of the Constitution ; and -is it pot a most authoritative construction ? ■ I was not prepared to hear the .counsel contend that, notwithstanding this-exposition of the Constitution, and ample, remedy provided in the act, the .master might disregard the act and set up his right under the' Constitution. • And having-taken this-step, it was easy to take another, an.d say, that this right, may ue' asserted by a forcible seizure and removal of the fugitive..

This-would be a most singhlar constitutional provision. It would extend’,'the remedy by recaption into another sovereignty, which.is sanctioned neither by t-he-.common law nor. the law of nations. If .the, master may lawfully - seize and- remove the fugitive out of. the state where he may. be found, without an exhibitioii. of his claim, he may'lawfully resist any force, physical or legal, ■ which the statp, or the citizens of the state, may interpose.

To hold that he must exhibit, his claim in case of resistance, is' to abandon ,the ground assumed. He is engaged, it is said, in.the lawful prosecution of aconstituiional right. All resistance then, by whomsoever made, or in whatsoever form,“must be illegal. Under such circumstances the master needs no proof of his claim,, though he.might stand in need of additional -physical power.. Having appealed to this power., he has only to collect a sufficient force to put .down all resistance and .attain 'his. object. Having done this, he not only stands acquitted and justified; but he has recourse for any injury he may have received in overcoming tlie.. resistance.

.If this be a constitutional remedy,-'it may^not always be a peaceful one. But if it be a rightful remedy, that it may be car-' ried to thi,s extent, no one can deny! And if it,may be exercised without claim of right, wfiy may.it not be; resorted to after the’ unfavourable decision of the judge or magistrate? .This-wouldlihfit the necessity of-the exhibition of proof by. the master to the single case where the'slave Was in the'actual' custody of somp public officer. How can, this be the true construction of the Constitution ?• • That such-a procedure -js not sanctioned by the act of 1793 has b^en shown. That,act was passed expressly to guard against acts of forcp and violence.

. I cáfinot perceive how any one can doubt that the remedy. *671 given in the- Constitution, if indeed it give any remedy Avithout legislation, “was designed to be a peaceful one ; • a remedy sanctioned by judicial authority; a remedy guarded by the forms of law. But the inquiry js. reiterated, is not the master entitled to his property? I answer that he is. His right is guarantied by the Constitution, and the. most summary means for its enforcement is found in the act of Congress..- And neither the state nqr its citizeps can obstruct the prosecution of this right.

The slave is found in a state where every man, black of white, is presumed to be free; and this state, to preserve the peace of its citizens, and its soil and jurisdiction from acts of violence, has prohibited the forcible abduction of persons of colour. Does this law conflict with the Constitution? It .clearly does not,- in its terms.'

The conflict i~ supposed to arise out of the prohibition against the forcible removal of persons of colour generally, which may include fugitive slaves. Prima, facie it does not include slaves, as every man within the state is presumed to be free, and there is no provision in the act which embraces slaves. Its language-, clearly shorvs, that it was- designed -to protect free .persons of colour Avithin the state. But'it is admitted, there-is no exception as to the forcible removal of slaves. And here the important and most delicate question arises between- the- power of the state, and. the assumed but not sanctioned -power of the federal government.

No conflict can arise between the act of Congress arid this state law. The conflict- can onlv. arise between the forcible acts -of the master and the' lavv of the state! The- piaster- exhibits no proof of' right to the services - of the. slave, but' seizes him, -and is about to remove him by force. I - speak. only of the force exerted on the-slave. The laW;.of the state presumes-him to. be free, and prohibits his removal'. 'Now, which shall,give ay, the master or the state ? .The law of the state does, in no case, discharge,-in '.the-language of the Constitution; the slave from the service of his master.

.It is a most important police regulation. And if the master violate it, is he not amenable ? The offence consists in the abduction of a. persón of.colour. -And this-is attempted' to be, juSti-. fled upon the. simple ground that-the slave is property. That a *672 slave is property must be admitted. . The state law is not. violated by the seizure of the slave by the master,, for this is authorized by the act of Congress; but by removing him out of the state by force, and without proof of right, which the act does not authorize. Now, is not this an act which a state may prohibit? .The presumption in a non-slaveholding state is against the right of the master,' and' in favour of the freedom of the person' he claims. This presumption may be rebutted, but until it is rebutted by the proof required in the act of 1793, and also, in my judgment,, by the Constitution, must not the law of the -state be respected and obeyed ?

The seizure which the master has a right to make under the act of Congress is for the purpose of- taking the slave before an officer; His possession of the slave within the state, under- this seizure, is qualified and limited to the subject for which it was made.

The certificate of right to the service of the slave is undoubtedly for the protection of the master; but it authorizes the removal. of the slave out of the state where he was found, to • the state from whence he fled. And under the Constitution this authority is valid in all the states.

The important point is, shall the presumption of right set up by the master, unsústained by any proof, or the presumption which arises from the laws and institutions of the state, prevail.. This is the true issue. The sovereignty of the state is .on one side, and the asserted interest of the master on the other. That interest is protected by the páramo'unt law, and a special, a summary, and an effectual mode of redress is-given. But this mode is not pursued, and the remedy is taken into his own hands by the master.

The presumption of the state that the coloured person is free may be erroneous in fact; and if so; there can be no difficulty-in proving it. But may not the assertion of the master be erroneous also; and if so, how'is his act of force to be remedied ? The co-loured person .is' taken, and forcibly conveyed beyond the jurisdiction of the state. This force, not being authorized by the act of Congress nor by the Constitution, may be prohibited b.y the state. As the act covers the whole power in the Constitution, and carries out, by special enactments, its provisions, we are, in my judgment, *673 bound by the act. We can no more, under- such circumstances, administer a remedy under the Constitution, in disregard of the act, than we can exercise a commercial- or other power in disregard of an act of Congress on the same subject.

This viéw respects the rights of the master and the rights of the. state. It neither jeopards nor retards the reclámation of the slave. It removes all state action prejudicial to the rights of the blaster; and recognises in the state a power to guard and protect its own jurisdiction, and the peace of its citizens.

It appears, in the case under consideration, that the state magistrate before whom the fugitive was brought refused to act. In my judgment he was bound to perform the duty required of him by a law paramount to any act, on the same subject, in his own state. But this refusal does not justify the subsequént action of the claimant. He should have taken the fugitive before a judge of the United States, two of whom resided within the state.

It may be. doubted whether the first section ofthe act of Pennsylvania under which the defendant was indicted, by a fair construction applies .to .the case under consideration. The decision of the Supreme Court of that state was pro forma, and, of course, without examination. Indeed, I suppose, the case has been made up merely to bring the question before this Court. My opinion, therefore, does not rest so much.upon the particular law of Pennsylvania, as upon the inherent and sovereign power'of a state, to protect its jurisdiction and the peace of its citizens, in any and every mode which its" discretion shall’ dictate, which shall not conflict with a defined power of the federal government.

This cause came on to be heard on the transcript' of the record- from the Supreme Court of Pennsylvania, and was argued by counsel; on consideration whereof, It is the opinion Of this Court, that the. act of the Commonwealth of Pennsylvania, ..upon which the indictment in this case is founded, is repugnant to the Constitution and laws of the United States; and, .therefore, void; and that the judgment of the Supreme Court of. Pennsylvania upon the special verdict found in the case, ought to have been that the said Edward Prigg was not guilty. • It is, therefore, ordéred and adjudged by this Court, that the judgment of the said Supreme Court of Pennsylvania be, and the same is, hereby, re *674 vérsed. And this Court, proceeding to fender such judgment in ,the premises as the said Supreme Court of Pennsylvania ought to have rendered, do hereby order and adjudge that judgment upon the special verdict aforesaid be here entered, that the. said Edward Prigg is not guilty in manner and form as‘is charged against him in the said indictment, and’that he go .thereof, qpit without day; and that this cause be, remanded to the Supreme Court of Pennsylvania with directions accpfdingly,. so that such other proceeding may be had therein as to law and justice shall ■ appertain.