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REPORT

OF THE

CASE OF EDWARD PRIGG

AGAINST

THE COMMONWEALTH OE PENNSYLVANIA.

ARGUED AND ADJUDGED

IN

ffilje Supreme (tfottvt of tl)e Untteir Statea,

AT

JANUARY TERM, 1843.

IN WHICH IT WAS DECIDED

THAT ALL THE LAWS OF THE SEVERAL STATES RELATIVE TO FUGITIVE SLAVES ARE UNCONSTITUTIONAL AND VOID ;

AND

THAT CONGRESS HAVE THE EXCLUSIVE POWER OF LEGISLATION ON THE SUBJECT OF FUGITIVE SLAVES ESCAPING INTO OTHER STATES.

BY RICHARD PETERS,

REPORTER OF THE DECISIONS OF THE SUPREME COURT OF THE UNITED STATES.

STEREOTYPED BY L. JOHNSON. 1S42.

Entered according to the Act of Congress; in the year 1S42, by Richard Peters,

in the Clerk's Office of the District Court of the United States, of the Eastern District of Pennsylvania.

PREFACE.

The general and deep interest of all the citizens of the United States in the case now published, has induced the Reporter to present it to the public in its present form, before the regular reports of the cases decided at the late term of the Supreme Court of the United States can be completed.

The principles of constitutional law, which have been applied in this case to the legislation of the several states relative to fugi- tive slaves, have established the invalidity of all state laws on this subject. Hereafter, under the Constitution of the United States, Congress will have, exclusively, the protection and main- tenance of the rights of the master over his absconded slave, and can alone supply the means of executing the Constitution of the United States for the arrest of such fugitives, and for their being carried back to the state from which they may have escaped. No state judicial officer, under the authority of state laws, can act in the matter ; no such officer is bound to act ; and Congress have no right to call upon such officers to carry into effect the laws enacted by the government of the United States.

In delivering the opinion of the Court, Mr. Justice Story says : " Few questions which have ever come before this Court involve more delicate and important considerations ; and few upon which the public at large may be presumed to feel a more profound and pervading interest."

Among the principles settled in this case, is one which has a general national importance ; and which it is understood is now in discussion between the government of the United States and that of Great Britain.

3

April, 1842.

Edward Prigg, Plaintiff in Error, v. The Commonwealth of Pennsylvania, Defendant in Error.

A writ of error to the Supreme Court of Pennsylvania, brought under the twenty- fifth section of the judiciary act of 1789, to revise the judgment of that Court, on a case involving the construction of the Constitution and laws of the United States.

Edward Prigg, a citizen of the state of Maryland, was indicted, for kidnapping, in the Court of Oyer and Terminer of York county, Pennsylvania, for having forcibly taken and carried away, from that county, to the state of Maryland, a negro woman, named Margaret Morgan, with the design and intention of her being held, sold, and disposed of as a slave for life, contrary to a statute of Pennsylvania, passed on the twenty-sixth day of March, 1826. Edward Prigg pleaded not guilty, and the jury found a special verdict, on which judgment was rendered for the Commonwealth of Pennsylvania. The case was removed to the Supreme Court of the state, and the judgment of the Court of Oyer and Terminer was, pro forma, affirmed : and the case was carried to the Supreme Court of the United States; the constitutionality of the law, under which the indictment was found, being denied by the counsel of the state of Maryland ; which state had undertaken the defence for Edward Prigg, and prosecuted the writ of error. The cause was brought to the Supreme Court, with the sanction of both the states of Maryland and Pennsylvania, with a view to have the questions in the case settled. Margaret Morgan was the slave for life, under the laws of Maryland, of Margaret Ashmore, a citizen of that state. In 1832 she escaped and fled from the state, into Pennsylvania. Edward Prigg, having been duly appointed the agent and attorney of Margaret Ashmore, and having obtained a warrant from a justice of the peace of York county, caused Margaret Morgan to be taken, as a fugitive from labour, by a constable of the state of Pennsylvania, before the magistrate, who refused to take cognisance of the case : and thereupon Edward Prigg carried her and her children into Maryland, and delivered them to Margaret Ashmore. The children were born in Pennsylvania ; one of them, more than a year after Margaret Morgan had fled and escaped from Maryland.

By the first section of the act of Assembly of Pennsylvania of 25th March, 1826, it is provided, that if any person shall by force and violence take and carry away, or shall by fraud or false pretence attempt to take, carry away, or seduce any negro or mu- latto from any part of the commonwealth, with a design or intention of selling and disposing of, or keeping or detaining such negro or mulatto as a slave or servant for life, or for any other term whatsoever, such person, and all persons aiding and abetting him, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit and pay a sum not less than five hundred nor more than three thousand dollars, and shall be sentenced to undergo a servitude for any term or terms of years, not less than seven years, nor exceeding twenty-one years; and shall be con- fined and kept at hard labour, &c. Other provisions are contained in the act; and it was passed in 1826, as declared in its title, to aid in carrying into effect the Constitution and laws of the United States, relating to fugitives from labour ; and on the application to the legislature, by commissioners from the state of Maryland,

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SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

with a view to meet the supposed wishes of the state of Maryland on the subject of fugitive slaves; but it had failed to produce the good effects intended. By the Court :

It will, probably, be found, when we look to the character of the Constitution of the United States itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures ; as well as to the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions ; that no uniform rule of interpretation can be applied, which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. Perhaps the safest rule of interpretation, after all, will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the light and aids of contemporary history ; and to give to the words of each just such operation and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.

It is historically well known, that the object of the clause in the Constitution of the United States, relating to persons owing service and labour in one state escaping into other states, was to secure to the citizens of the slaveholding states the com- plete right and title of ownership in their slaves, as property, in every state in the Union, into which they might escape from the state where they were held in servi- tude. The full recognition of this right and title, was indispensable to the security of this species of property in all the slaveholding states ; and indeed was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it constituted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevailing in the non-slavcholding states, by preventing them from inter- meddling with or obstructing or abolishing the rights of the owners of slaves.

By the general law of nations, no nation is bound to recognise the state of slavery as to foreign slaves within its territorial dominions, when it is opposed to its own policy and institutions, in favour of the subjects of other nations where slavery is recognised. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation ; founded upon, and limited to the range of the territorial laws.

The clause in the Constitution of the United States,, relating to fugitives from labour, manifestly contemplates the existence of a positive, unqualified right, on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain. Any state law or regulation, which interrupts, limits, delays, or postpones the rights of the owner to the immediate command of his service or labour, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much he is discharged from , but whether he is discharged from any, by the natural or necessary operation of the state laws, or state regulations. The question is not one of quantity or degree, but of withholding or controlling the inci- dents of a positive right.

The owner of a fugitive slave has the same right to seize and take him in a state to which he has escaped or fled, that he had in the state from which he escaped : and it is well known that this right to seizure or recapture is universally acknowledged in all the slaveholding states. The Court have not the slightest hesitation in hold- ing, that under and in virtue of the Constitution, the owner of the slave is clothed with

JANUARY TERM, 1842.

7

[Prigg v. The Commonwealth of Pennsylvania.]

the authority in every state of the Union, to seize and recapture his slave ; wherever he can do it without any breach of the peace, or illegal violence. In this sense, and to this extent, this clause in the Constitution may properly be said to execute itself, and to require no aid from legislation, state or national.

The Constitution does not stop at a mere annunciation of the rights of the owner to seize his absconding or fugitive slave, in the state to which he may have fled. If it had done so, it would have left the owner of the slave, in many cases, utterly with- out any adequate redress.

The Constitution declares that the fugitive slave shall be delivered up on claim of the party to whom service or labour may be due. It is exceedingly difficult, if not im- practicable, to read this language, and not to feel that it contemplated some further remedial redress than that which might be administered at the hand of the owner himself. "A claim" is to be made.

"A claim," in a just juridical sense, is a demand of some matter as of right, made by one person upon another to do or to forbear to do some act or thing, as a matter of duty.

It cannot well be doubted, that the Constitution requires the delivery of the fugitive on the claim of the master : and the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort would seem to be, that where the end is required, the means are given ; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is intrusted.

The clause relating to fugitive slaves is found in the national Constitution, and not in that of any state. It might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government; nowhere delegated or intrusted to them by the Constitution. On the contrary, the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the con- trary, is bound, through its own proper departments, legislative, executive, or judi- ciary, as the case may require, to carry into effect all the right and duties imposed upon it by the Constitution.

A claim to a fugitive slave is a controversy in a case " arising under the Constitution of the United States," under the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity, for the very purpose of giving effect to the right; and if so, then it may prescribe the mode and extent to which it shall be applied ; and how and under what circumstances the proceedings shall afford a complete protection and guaranty of the right.

The provisions of the sections of the act of Congress of 12th February, 1793, on the subject of fugitive slaves, as well as relative to fugitives from justice, cover both the subjects ; not because they exhaust the remedies, which may be applied by Con- gress to enforce the rights, if the provisions shall be found, in practice, not to attain the objects of the Constitution : but because they point out all the modes of attaining those objects which Congress have as yet deemed expedient and proper. If this is so, it would seem upon just principles of construction, that the legislation of Con- gress, if constitutional, must supersede all state legislation upon the same subject ; and by necessary implication prohibit it. For if Congress have a constitutional power to regulate a particular subject, and they do actually regulate it in a given manner,

8 . SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

and in a certain form ; it cannot be that the state legislatures have a right to interfere. This doctrine was fully recognised in the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22. Where Congress have exclusive power over a subject, it is not competent for state legislation to add to the provisions of Congress on that subject.

Congress have, on various occasions, exercised powers which were necessary and proper, as means to carry into effect rights expressly given, and duties expressly enjoined by the Constitution. The end being required, it has been deemed a just and necessary implication, that the means to accomplish it are given also ; or, in other words, that the power flows as a necessary means to accomplish the ends.

The constitutionality of the act of Congress relating to fugitives from labour, has been affirmed by the adjudications of the state tribunals, and by those of the Courts of the United States. If the question of the constitutionality of the law were one of doubt- ful construction, such long acquiescence in it, such contemporaneous expositions of it ; and such extensive and uniform recognitions, would, in the judgment of the Court, entitle the question to be considered at rest. Congress, the executive, and the judiciary, have, upon various occasions, acted upon this as a sound and reasonable doctrine. Cited, Stuart v. Laird, 1 Cranch, 299 ; Martin v. Hunter, 1 Wheat. 304; Cohens v. The Commonwealth of Virginia, 6 Wheat. 264.

The provisions of the act of 12th February, 1793, relative to fugitive slaves, is clearly constitutional in all its leading provisions ; and, indeed, with the exception of that part which confers authority on state magistrates, is free from reasonable doubt or difficulty. As to the authority so conferred on state magistrates, while a difference of opinion exists, and may exist on this point in different states, whether state magis- trates are bound to act under it, none is entertained by the Court, that state magis- trates, may, if they choose, exercise the authority, unless prohibited by state legisla- tion.

The power of legislation in relation to fugitives from labour, is exclusive in the national legislature. Cited, Sturgis v. Crowninshield, 4 Wheat. 122, 193.

The right to seize and retake fugitive slaves, and the duty to deliver them up, in what- ever state of the Union they may be found, is under the Constitution recognised as an absolute positive right and duty, pervading the whole Union with an equal and su- preme force, uncontrolled and uncontrollable by state sovereignty, or state legislation.

The right and duty are coextensive and uniform in remedy and operation throughout the whole Union. The owner has the same security, and the same remedial justice, and the same exemption from state regulations and control, through however many states he may pass with the fugitive slave in his possession, in transitu, to his domi- cile.

The Court are by no means to be understood, in any manner whatever, to doubt or to interfere with the police power belonging to the states, in virtue of their general sove- reignty. That police power extends over all subjects within the territorial limits of the states, and has never been conceded to the United States. It is wholly distinguish- able from the right and duty secured by the provision of the Constitution relating to fugitive slaves; which is exclusively derived from the Constitution, and obtains its whole efficiency therefrom.

The Court entertain no doubt whatsoever, that the states, in virtue of their general police power, possess full jurisdiction to arrest and restrain run-away slaves, and to remove them from their borders, and otherwise to secure themselves against their depredations,

JANUARY TERM, 1842.

9

[Prigg v. The Commonwealth of Pennsylvania.]

and evil example, as they certainly may do in cases of idlers, vagabonds, and paupers. The rights of the owners of fugitive slaves, are in no just sense interfered with or regulated by such a course ; and in many cases they may be promoted by the exercise of the police power. Such regulations can never be permitted to interfere with or obstruct the just rights of the owner to reclaim his slave derived from the Constitu- tion of the United States, or with the remedies prescribed by Congress to aid and enforce the same.

The act of the legislature of Pennsylvania upon which the indictment against Edward Prigg is founded, is unconstitutional and void. It purports to punish as a public offence against the state, the very act of seizing and removing a slave by his master, which the Constitution of the United States was designed to justify and uphold.

IN 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 Common- wealth of Pennsylvania, hold en 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 :

1. Sec. III. All persons as well negroes and mulattoes as others, who shall be born within this state, shall not be deemed and con- sidered as servants for life, or slaves ; and all servitude for life, or slavery of children in consequence of the 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 forever abolished.

2. Sec. IV. Provided always, that every negro and mulatto

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10 SUPREME COURT.

[Prigg t'. The Commonwealth of Pennsylvania.

child barn within this state after the passing of this act as afore- said, (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 *vould 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, 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 herein before limited for the service of such children.

3. Sec. V. 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 sur- name 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, or 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 particu- lars 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 allowed to him in his accounts.

4. Sec. VI. Provided always, that any person in whom the

JANUARY TERM, 1842.

11

[Prigg v. The Commonwealth of Pennsylvania.]

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 here- inbefore 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 mis- tress 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.

6. Sec. VIII. 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.

7. Sec. IX. The reward for taking up runaway and abscond- ing negro and mulatto slaves and servants, and the penalties for enticing away, dealing with, or harbouring, concealing or employ- ing 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.

8. Sec. X. No man or woman, of any nation or colour, except the negroes and 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,

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12 SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

foreign ministers and consuls) retained in this state longer than six months.

9. Sec. XI. (Repealed 25th March, 1826.)

Sec. XII. 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,

10. Sec. XIII. No covenant of personal servitude or appren- ticeship whatsoever, shall be valid or binding on a negro or mu- latto 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 ap- prentice, 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.

Sec. XIV. That this act or any thing 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 Gene- ral Assembly of the Commonwealth of Pennsylvania, holden at the city of Philadelphia, on the 29th day of March, 1788, the

JANUARY TERM, 1842.

13

[Prigg v. The Commonwealth of Pennsylvania.]

following law was passed and enacted, "An act to explain and amend 'An act for the gradual abolition of slavery.' "

"Sec. L 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 one thousand seven hundred and eighty, be it enacted :

Sec. II. The exception contained in the tenth section of the act of the first of March, one thousand seven hundred and eighty, 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.

Sec. III. 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 man- ner aforesaid, and also without the consent of his or her parents, if any such there be, to be testified in like manner aforesaid, where- of 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

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[Prigg v. The Commonwealth of Pennsylvania.]

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 con- sent as by this act is required, testified in the manner before men- tioned, 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 there- of, 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.

Sec. IV. All persons who now are, or hereafter shall be, pos- sessed of any child or children, born after the first day of March, one thousand seven hundred and eighty, 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, one thousand seven hundred and eighty-nine, 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 place of the county, or the clerk of the Court of Record of the city of Philadelphia, in which they shall respectively inhabit, the name, sur-name, and occupation or profession of such pos- sessor, and of the county, township, district, or ward, in which they reside, and also the age, (to the best of his or her know- ledge,) 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 becom- ing 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 jus- tice, when certified under their hands and seals of office, for which oath or affirmation, and entry on extract, the said clerks shall be respectively entitled to one shilling and six pence, and no more,

JANUARY TERM, 1842.

15

[Prigg v. The Commonwealth of Pennsylvania.]

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 :

Sec. V. 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 vene, in the Supreme Court or in the County Court of Common Pleas for the county wherein such seizure shall be made : whereupon such proceed- ings 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 send- ing 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 mis- tresses :

Sec. VI. If any owner or possessor of any negro, mulatto slave or slaves, or servant or servants for term of years, shall, from and

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[Prigg r. The Commonwealth of Pennsylvania.]

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, with- out the consent of such slave or servant for life or years shall have been obtained and testified in the manner hereinbefore de- scribed, 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 re- moved."

(Sec. VII. Repealed 27th March, 1820, and 25th March, 1826.)

And the jurors further found, that at a session of the General Assembly of the Commonwealth of Pennsylvania, holden at Har- risburg, 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 labour, for the pro- tection of free people of colour, and to prevent kidnapping."

"Sec. I. If any person or persons shall from and after the pass- ing 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 inten- tion 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

JANUARY TERM, 1842.

17

[Prigg v. The Commonwealth of Pennsylvania.]

passing the sentence, a sum not less than five hundred, nor more than one thousand dollars, one-half thereof 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 labour, fed and clothed in the manner as is directed, by the penal laws of this commonwealth, for persons convicted of robbery.

Sec. II. If any person or persons shall hereafter, knowingly sell, transfer, or assign, or shall knowingly purchase, take, or transfer on 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 labour, fed and clothed in the same manner as is directed by the penal laws of this common- wealth for persons convicted of robbery.

Sec. III. When a person held to labour 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 labour 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 3 b 2

18 SUPREME COURT.

[Prigg t\ The Commonwealth of Pennsylvania.]

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 follow- ing 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 labour or service to

, of county, in the state of , and the

said hath escaped from the labour 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.

Sec. IV. 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 admi- nister 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

JANUARY TERM, 1842.

19

[Prigg v. The Commonwealth of Pennsylvania.]

said claimant's title to the service of such fugitive, and also the name, age, and description of the person of such fugitive.-

Sec. V. 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, jus- tice of the peace or alderman, who shall refuse or neglect to com- ply with the provisions of this section, shall be deemed guilty of a misdemeanor in office, and shall, on conviction thereof, be sen- tenced to pay, at the discretion of the Court, any sum not exceed- ing 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 without 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 labour, for a time not exceeding six months, or both.

Sec. VI. The said fugitive from labour 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 1 state or territory from which she or he fled from service or labour, to the person cln lin- ing him or her, it shall be the duty of such judge to give a certi- ficate 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 :

20

SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

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.

Sec. VII. 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 attor- ney 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 hear- ing shall be adjourned : Provided, That on the hearing last men- tioned, 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.

Sec. VIII. 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 act, to be paid by the owner, agent, or attorney, immediately on the perform- ance of the duties aforesaid.

Sec. IX. No alderman or justice of the peace of this common- wealth shall have jurisdiction or take cognisance of the case of any fugitive from labour from any of the United States or territories under a certain act of Congress, passed on the tenth day of February, one thousand seven hundred and ninety-three.

JANUARY TERM, 1842.

21

[Prigg v. The Commonwealth of Pennsylvania.]

entitled "An act respecting fugitives from justice, and persons escaping from the service of their masters;" nor shall any al- derman or justice of the peace of this commonwealth issue or grant any certificate or warrant of removal of any such fugitive from labour as aforesaid, except in the manner and to the effect pro- vided 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 pro- visions 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 there- of, be sentenced to pay at the discretion of the Court any sum not less than five hundred dollars, nor exceeding one thousand dollars, or half thereof, to the party prosecuting for the same, and the other half to the use of the commonwealth.

Sec. X. 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 labour to the state or territory from which he or she fled, in pursuance of an act of Congress passed the twelfth day of February, one thousand seven hundred and ninety-three, 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 trie 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.

Sec. XI. 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, one thousand seven hundred and eighty,

II

22 SUPREME COURT.

[Prigg r. The Commonwealth of Pennsylvania.]

entitled "An act for the gradual abolition of slavery," except the eleventh section of said act, which is hereby repealed and sup- plied, nor of any part of an act of assembly passed on the twenty- eighth day of March, one thousand seven hundred and eighty- eight, entitled "An act to explain and amend an act for the gradual abolition of slavery," except the seventh 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 eighteen hundred and thirty-two ; that at that time, and for a long period before that time, she was a slave for life, held to labour, and owing service or labour for, 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 Hartford 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 Ash- more ; that in the month of February, eighteen hundred and thirty-seven, 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 labour, and to re- move, take, and carry her from this state into the state of Mary- land, 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, eighteen hundred and thirty- seven, 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 labour for life, under the laws thereof, to the said Margaret Ash- more ; that the said Thomas Henderson, so being such justice of the peace as aforesaid, thereupon issued his warrant, directed to one William M'Cleary, 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 M'Cleary, in obedience

JANUARY TERM, 1842.

23

[Prigg v. The Commonwealth of Pennsylvania.]

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 Penn- sylvania, 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 labour, for the protection of free people of colour, 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 Ed- ward 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, the attorney-general of Pennsylvania, taken under the provisions of an act of the Assembly of Pennsylvania, passed 22d of May, 1839 ; and by agreement, the Court gave judg-

24 SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

ment 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. Mere- dith, 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 of York county in this case, should be reversed for the reason fol- lowing, 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 Mr. Mere- dith and Mr. Nelson, under authority to appear in the case for the state of Maryland; and by Mr. Johnson, the attorney- general of Pennsylvania, and Mr. Hambly, for the Common- wealth 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 ; and is therefore unconstitutional and void.

JANUARY TERM, 1842.

25

[Prigg v. The Commonwealth of Pennsylvania.]

Mr. Meredith, for the state of Maryland ; interposing in behalf of the plaintiff in error ; adverted to the special act of the legis- lature 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 pro- vision of the Constitution of the United States, which relates to fugitive slaves. He then briefly stated the facts of the particu- lar 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 Penn- sylvania law of the 25th of March, 1826, which had 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 constitu- tionality of the act of Congress ; the whole matter, as he believed, would be found to lie within very narrow limits. But, undoubt- edly, the cause itself, looking to the consequences of its decision by the tribunal he addressed, was one of deep and pervading interest. It involved matters of high concernment, not only to the two sovereign states, which stood before the Court as the im- mediate parties to the controversy ; but to those other states of the Union, which, with reference to the questions at issue, occu- pied 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 lit, therefore, that such 3 C

26 SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

a cause should receive not only a careful, but a thorough exami- nation, before it was finally passed upon by the conclusive judg- ment 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 maintain- ing 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. And

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 indict- ment 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 Pennsyl- vania : for, if successfully maintained, it would be fatal to their case. Because it was clear beyond all doubt, that if the legisla- tion 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 labour," is at best a mere work of legislative supererogation, wholly futile and inoperative. It was not, there- fore, 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

JANUARY TERM, 1842.

27

[Prigg v. The Commonwealth of Pennsylvania.]

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 labour 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 guarantees 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 labour 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. Re- gulations upon these points were indispensable to elfectuate 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 illus- tration of the necessity of such legislation ; and for this purpose re- ferred to the first volume of State Papers, title Miscellaneous, page 3S 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

28

SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

the Court was referred, he took several objections ; and among them, the one most strenuously insisted on was, that the Constitu- tion 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 pre- scribed." 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 refu- sal, 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 legisla- ture, 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 deli- cate and important." The president, it appears, laid these pro- ceedings, with the opinion of the attorney-general of the United States, before Congress ; and the result was, that at the same ses- sion, 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 neces- sary to remark, that the same difficulties and embarrassments would have arisen in reference to the provision regarding fugi- tives from labour, but for the enactments of the law of 1793. In- deed, in looking to both provisions, it would be found that the

JANUARY TERM, 1842.

29

[Prigg v. The Commonwealth of Pennsylvania.]

necessity of legislation is obviously much less, in that which con- cerns fugitives from justice, than in the one now more immedi- ately under consideration. The act of Congr^s 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 Chan- cellor, but neither reasoned out, nor relied on. In every other case, it has been taken for granted that legislation was necessary to effectuate 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. Rep. 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 Con- stitution 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 north- ern 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 defiance 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

c 2

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SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

time afterwards, these examples were followed by all, or nearly- all of the New England states.

The institution, jjowever, still continued to exist in the south. The climate of that region, and the products of its soil, peculiarly adapted to this species of labour, has increased the slave popula- tion to so great a number, that, at the close of the Revolution, the system had so intertwined 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 imprac- ticable. During the confederation, the southern states had sus- tained great inconveniences and loss by the change that had been effected by the abolition laws of the northern states. The con- ventional 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 fugitive slaves ; and sometimes indeed they met with open resistance. 3 Story's Comm. on the Const. 677. "At present," said Mr. Madison, in the Virginia convention, 2 Elliott's Deb. 335, "at present, 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 eman- cipated 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 Constitu- tion 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 to satisfy the minds of the people, that property of this

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[Prigg v. The Commonwealth of Pennsylvania.]

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 neces- sary consequence, that they meant to commit ah 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 prose- cution 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. Rep. 311, is entitled to the most attentive consideration of the Court, " the idea that the framers of the Constitution intended to leave the legis- lation of this subject to the states, when the provision itself obvi- ously 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

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[Prigg v. The Commonwealth of Pennsylvania.]

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, then, is a contemporaneous exposi- tion 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 Comm. on the 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 con- sideration, 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 inter- pretation, 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. Rep. 351, and Cohens v. the State of Virginia, 6 Wheat. Rep. 418, may be referred to ; for the pur- pose 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 salu- tary regulations in reference to both the subjects to which it re- lates. Ought a construction, time-honoured 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,

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[Prigg v. The Commonwealth of Pennsylvania.]

1 Cran. Rep. 309, which involved the constitutionality of the pro- vision 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 obsti- nate 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 acqui- escence, we have the judicial decisions of the three great non- slaveholding states — Massachusetts, New York, and Pennsyl- vania ; in which the constitutionality of this act of Congress was challenged and sustained. Commonwealth v. Griffith, 2 Pick. Rep. 11 4 Wright v. Deacon, 5 Serg. and Rawle's Rep. 63; Jack v. Martin, 12 Wend. Rep. 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 re- ference 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 federal government is a limited one ; that the Constitution enu- merates 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 5

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[Prigg v. The Commonwealth of Pennsylvania.]

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 Con- gress. Martina. Hunter, 1 Wheat. Rep. 304, 316.

The judiciary act of 1789 does not cover the whole judicial power under the Constitution. Subsequent legislation has sup-' plied 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 proceed- ing 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 pro- vides 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 fugitives, — 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.

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[Prigg v. The Commonwealth of Pennsylvania.]

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. Sturgis v. Crowninshield, 4 Wheat. Rep. 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 slaveholding states, substantially, the right which the conven- tional 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 pre- scribe 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 fugi- tive could only be reclaimed according to the forms of state laws, irrespective of the regulations prescribed by Congress. The con- stitutional guaranty would thus become a sounding phrase, signi- fying nothing. State legislation, upon such a subject, would become the sport of prejudice. Different tribunals, forms of pro- ceeding, and modes of proof, would be established in the different states. And the pursuing owner would find it utterly impracti- cable, 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 exist- ence 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 esta-

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[Prigg v. The Commonwealth of Pennsylvania.]

blished 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. Rep. 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 prohi- bited. In other words, wherever Congress exercises a concurrent power, it is made in effect an exclusive power, over the particu- lar 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 Con- gress 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 en- forcement of his rights. The Pennsylvania law gives him no redress. In a word, the regulations which the two laws pre- scribe, are in all essential respects variant from each other. The

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[Prigg v. The Commonwealth of Pennsylvania.]

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 labour 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 kid- napping 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 spe- cial 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 ver- dict expressly finds that the slave was carried out of the state, without complying with the requirements of this law of Pennsyl- vania. That is the gravamen of the charge. And, consequently, if the state of Pennsylvania has no constitutional power to legis- late at all upon the subject, the power being exclusively in Con- gress ; 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.

Mr. 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 prospe- rity, the lives or 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

D

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[Prigg v. The Commonwealth of Pennsylvania.]

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 common- wealth. Any irreverential touch given to this ark of public safety should be rebuked, and every violence chastened ; its sanc- tity 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 Penn- sylvania 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 sections 2, 3, 4, 5, 6, 7, 8, 9, and 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

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[Prigg v. The Commonwealth of Pennsylvania.]

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 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."

Under this section, some contend that the owner of a slave has a right, without reference to the municipal regulations of the state or territory where he 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 inde- pendent ; and that the word " claim" means demand and sur- render, 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 invalid.

The act of Congress was passed 12th of February, 1793; and authorizes the arrest of a fugitive from labour, 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 cer- tificate which shall be sufficient warrant for the removal of the fugitive.

The second section fixes a forfeiture of five hundred dollars on any person who shall obstruct, hinder, rescue, or harbour 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," every thing 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

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[Prigg v. The Commonwealth of Pennsylvania.]

say, that no state by "any law or regulation therein," shall dis- charge 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 state 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 labour, without adding a word about "laws or regulations?" The conclusion is unsound, and altogether unwarranted. The language of the Constitution not only presupposes legislation, but that this legis- lation 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 labour from that service which he owes under the laws of the state from whence he fled. Your authori- ties shall say whether under the laws of that state he owes ser- vice, 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 that early day, when the framers of that instrument were almost all ill full public life ; when the debates at its formation and upon its adoption were still fresh in the memory of the whole country; that 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 allow- able ? 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 defi- nitely the meaning which they intended to attach ? What is the

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[Prigg v. The Commonwealth of Pennsylvania.]

meaning of " claim ?" "A challenge of ownership/' says Plow- den. 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 so 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. (i Shall be delivered up on demand," is the language used in reference to criminals ; but fugitives from labour 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 imme- diate obedience. " Claim" supposes debate, litigation, the deci- sion 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, negotia- tion 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 regu- lation therein" — and the clause would then have stood in an obvious shape; and every one would have understood that any fugitive from labour, 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 6 d 2

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[Prigg v. The Commonwealth of Pennsylvania.]

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 con- vention.

Another most valid and substantial reason against this con- struction 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 neighbouring 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 labour, 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 orf a free man. There is no power, if neither Congress nor the states can legislate, to dispute the question with the seizing party.

In non-slaveholding states the presumption is, that every man is a free man until the contrary be proved. It is like every other legal presumption, in favour of the right. Every man is pre- sumed 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 slaveholding state colour always raises a presumption of slavery, which is directly contrary to the presumption in a free or non-slaveholding state; for in the latter, prima facie, every man is a free man. If, then, under this most monstrous assumption of power, a free man 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 par- ties to the Constitution;" that "we, the people, " does not embrace them. This is admitted, but we are not arguing the want of

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[Prigg v. The Commonwealth of Pennsylvania.]

power to "claim" and take a slave, but to claim and take a free man ! Admit the fact that he is a slave, 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 free man. If one can arrest and carry away a free man "without due process of law;" if their persons are not in- violate; your Constitution is a waxen tablet, a writing in the sand; 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 jea- lousy 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 per- sonal 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 impossible case, — suppose a man to be seized in the streets of Philadelphia simultaneously by a citi- zen 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

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[Prigg v. The Commonwealth of Pennsylvania.]

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 free man ; 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 free man into slavery. Possession of a slave, in the absence of proof, is sufficient evidence of title. 2 Marsh. Rep. 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 sec. 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 labour, — 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 can- not try the question ; and a free citizen goes promptly and without redress into slavery ! Ay, 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 chance of fair trial would any man under such circumstances have in the state to which lie is 1 taken, where all the presumptions are against him, where the whole public opinion is against him, where he is entirely sepa- rated from his witnesses, whilst the whole onus probandi is thrown upon him. Better a thousand slaves escape, than that one free man should be thus carried into remediless slavery !

It is true that Chancellor Walworth, in the case of Jack v.

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[Prigg v. The Commonwealth of Pennsylvania.]

Martin, in 14 Wendel, 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 amend- ments to the Constitution. The open avowed ground is taken, that in a free state every man is prima facie a free man 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 unreasona- ble seizures is guarantied by the Constitution. Ay ! 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 like- wise be as readily conceded that it is not " prohibited" to the states. Then, if Congress possesses this power, it must be in vir- tue 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

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[Prigg v. The Commonwealth of Pennsylvania.]

the authority of training. Art. 1, sec. S, clause 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. Sturgis v. Crownin- shield, 4 Wheat. 193.

In order, therefore, to ascertain whether this power of legisla- tion 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 sove- reign, independent body. Each had the right to enact laws which no other power could revise. Each could make war 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 king- doms 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 impli- cation, 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. Article 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,

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47

[Prigg v. The Commonwealth of Pennsylvania.]

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 contro- verted 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 Constitu- tion," as the exercise of extra-territorial power would be.

It is inferred, then, from all this, that this power is not a con- current 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 dis- similar. 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 con- struction.

It is urged, however, that the passage of the act of Congress of 1793 affords a very strong argument in favour 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 Constitu- tion 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

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[Prigg v. The Commonwealth of Pennsylvania.]

powers which the action of the highest legislative body absorbs and takes away from the states.

This argument, if it prove any thing, 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 Cir- cuit Court, or before any magistrate of a comity, 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: "Con- gress cannot vest any portion of the judicial power of the United States except in Courts ordained and established by itself.'" Cons, sec, 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, sec. 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 been held by both the Supreme and State Courts. United States v. Lathrop, 17 Johns. 4 ; Ely v. Peck, 7 Conn. R. 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 juris- diction given it by an act of Congress; but the judges in both cases declined exercising it. 1 Kent's Corn. 402, 403.

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 Consti- tution, 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

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49

[Prigg v. The Commonwealth of Pennsylvania.]

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 favour, very decidedly, of the exercise of this power by the national legislature. Let us therefore examine.

In 5 Serg. and 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 consti- tutionality 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 assault 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 exoluded 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 7 E

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[Prigg v. The Commonwealth of Pennsylvania.]

an interested withdrawal of the whole subject-matter from the hands of the states conld be effected by the south, will it not pro- duce constriction and collapse 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 sub- ject with the calumet of peace, rather than the tomahawk; with the conciliatory spirit of a band of brothers, instead of the animo- sity 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 the argument of Judge Nelson and Senator Bishop, in favour 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 Symmons, tried by Judge Washington, and reported in 4 Wash. C. C. Rep. 396, nor in the case of John- son v. Tompkins, 1 Baldw. Rep., was the question of constitu- tionality 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 mo- ment 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 sec. 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 govern-

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51

[Prigg v. The Commonwealth of Pennsylvania.]

merit of the United States or in any department or officer thereof."

Judge Story says, in his Commentary, sec. 1238 : " The plain import of this clause is, that Congress shall have all the incidental and instrumental powers necessary and proper to carry into exe- cution all the express powers. It neither enlarges any power specifically granted, nor is it a grant of any new power to Con- gress."

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 Hunter's Lessee ad. Martin, 1 Wheat. 326, the government of the United States can claim no powers which are not granted to it by the Constitu- tion, and the powers actually granted, must be such as are ex- pressly given or given by necessary implication. On the other hand, this instrument is to have a reasonable construction, accord- ing 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, 203, we are told that "no direct power is granted over these objects to Congress, and consequently they remain subject

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[Prigg v. The Commonwealth of Pennsylvania.]

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 as- sume a national aspect, or attain a " national purpose."

If then this power be not expressly in Congress, nor concur- rently, nor necessarily appurtenant to any other power, what is the meaning of this clause ?

" No person held to service or labour 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 ser- vice or labour is due."

It simply means this — nothing more nor less: You may legis- late— 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 legis- late, it is reserved to the states under the 10th article of the amendments.

" The powers not delegated to the United States by the Consti- tution, 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 Constitu- tion, and which were not by that Constitution exclusively dele- gated to the Union. 1 Wheat. 325.

Suppose art. 4, sec. 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 it 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, sec. 4, clause 1, the times, places, and manner of holding elections for senators and representatives shall be pre- scribed by the state legislatures; but the framers of the Constitu- tion cautiously add, that Congress may make or alter such regula- tion, except as to place.

JANUARY TERM, 1842.

53

[Prigg v. The Commonwealth of Pennsylvania.]

Art. 1, sec. 8, clause 5, the power to coin money, one of the highest attributes of sovereign power, is expressly given to Con- gress; and yet, in section 10, clause 1 of art. 1, the states are cautiously and expressly prohibited from coining money. This has always been the highest mark of sovereign 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 Conven- tion, that this matter was expected to be left to state legislation ; and that the south was not united itself upon the subject. Madi- son 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 sub- ject of slaves and slavery was left in the hands of the states. Art. 1, sec. 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 180S 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, without any other consideration, is sufficiently con- vincing 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 be- half 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

e 2

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SUPREME COURT.

[Prigg v. The Commonwealth of Pennsylvania.]

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 be- cause 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 legis- lation, 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 un- conditional 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 regu- lation of police, and does not suppose the exercise of national power ; and, 9. That the Constitution, in art. 1, sec. 9, gives, or rather leaves the whole subject in the hands of the states, where it originally found it.

Mr. Johnson, attorney-general of Pennsylvania, stated that he ap- peared 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 groundwork of the indictment and proceed- ings in the present case. He said he occupied a position of great

JANUARY TERM, 1842.

55

[Prigg v. The Commonwealth of Pennsylvania.]

delicacy and embarrassment : He stood before the Court not only as the counsel, but as the official representative of the Common- wealth of Pennsylvania ; and was, as such, bound by an oath as solemn as that taken by their honours, 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 gentlemen, 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 his 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 hesitate to speak in earnest, for he spoke with sin- cerity. He desired to place Pennsylvania rectus in curiae, on her proper footing, before the Court. She came there voluntarily. She was not dragged sullenly to that high bar, denying the jurisdic- tion 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 beeii 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 stat< ■

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[Prigg v. The Commonwealth of Pennsylvania.]

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 favoured the abolition of slavery. And now, a singular change of places is exhibited — the state of Mary- land 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 1S26 is too indulgent to slaveholders ; the other, that it deprives them of their just rights. The considerate and enlightened citizens of Pennsyl- vania, with few, if any, exceptions, were, he believed, of the opinion that this law was precisely what it should be — alike war- ranted by the federal Constitution, and careful to protect the rights of all. As such, it would be his duty, as it was his plea- sure, 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 phi- lanthropy 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 ab- horred 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 1S26. Its very title speaks its object. It is " 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." Thus is this very unconstitutional act found to be an act to give effect to the Constitution. The history of the legis- lation 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

JANUARY TERM, 1842. 57

[Prigg v. The Commonwealth of Pennsylvania.]

the state of Maryland herself. She will not consent to surrender it, until this Court, by its decision, strips her of that valued attri- bute 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. Sub- stantially they are these :

1. Is the power of prescribing the mode of delivering up fugi- tives from service or labour, under the 2d section of the 4th article of the Constitution, exclusively vested in the general govern- ment ?

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 incidently, 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 pre- tending to trouble the Court with a detailed and critical examina- tion 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, 1 Baldwin, 571 ; Com. v. Holloway, 2 Serg. & Rawle, 306 ; S. C, 3 Serg. & Rawle, 4 ; Com. v. Griffiths, 2 Pick. 18 ; Jack v. Martin, 12 Wend. 312 ; S. C, 14 Wend. 510. In the cases in the New York and Massachusetts reports, the Courts were divided in opinion. In 8

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[Prigg v. The Commonwealth of Pennsylvania.]

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 sub- ject 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 embar- rassment 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 argu- ment. 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 prelimi- nary 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, witli 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 govern- ments, on this solid and impregnable basis.

1. 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 labour in one state under the laws thereof, escaping into another, shall, in consequence of any law or regula- tion 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 provision certainly gives no authority

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59

[Prigg v. The Commonwealth of Pennsylvania.]

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 recog- nises 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 govern- ment 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 pro- hibition of legislation upon the states gave the positive right to Congress to legislate ; much less can it be pretended, that a pro- hibition 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 federal 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

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[Prigg v. The Commonwealth of Pennsylvania.]

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 Consti- tution. 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 adop- tion 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, free 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 pro- vision of the Constitution under consideration furnishes this gua- rantee ; 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 Constitu- tion. That it was excluded on account of the scruples of certain of the northern members of the convention; and had these mem- bers been told that they were depriving the states they represented.

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[Prigg v. The Commonwealth of Pennsylvania.]

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 pro- hibiting 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 wound 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 ten- dency of this course of reasoning is, not only to prove that the general government has not exclusive, but that it has no jurisdic- tion 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 con-

F

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[Prigg v. The Commonwealth of Pennsylvania.]

tradictory and repugnant to the exercise of a rightful power by the general government. See the Federalist, No. 32; Sturgis 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, or 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 sup- posed 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.

2. Taking it, then, as established by the argument, that exclu- sive authority to legislate on this subject is not vested in the general government, is it vested in the respective states concur- rently, 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 sur- rendering 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 go- vernment; 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 Wheat. 1 ; 2 Dallas, 291 ; 3 Dallas, 386 ; 2 Wheat. 259 ; 3 Wash. C. C. R. 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 sub- ject, is supposed to have been a constitutional exercise of power. Passed so recently after (he adoption of the Constitution, and

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[Prigg v. The Commonwealth of Pennsylvania.]

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 constitu- tional 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 Gover- nor 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 fugi- tives 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 Papers, Miscel- laneous, 38, 39. 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 compre- hended 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 subject 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, &c, who shall flee, &c. The first section of the fourth article of the Constitution expressly confers on Congress the power of pre-

6 1

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[Prigg v. The Commonwealth of Pennsylvania.]

scribing the manner in which "records and judicial proceed- ings shall be proved, and the effect thereof." The right, there- fore, 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 autho- rity of the general government ; and which terminated forever, if such right ever existed, the concurrent power of the states to legislate on the same subject ? It empowers state judges, magis- trates, &c, &c, to take cognisance of the cases of fugitive slaves, together with judges holding their appointments under the na- tional 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 Commentaries on the Constitution, 114, 115, 386, 603 ; Sergeant's Constitutional Law, 3S6, 39S.

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 au- thorities 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 Dis- trict of Columbia, the territories, and wherever Congress had exclusive right of legislation. To this extent he did not intend to question its validity.

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[Prigg v. The Commonwealth of Pennsylvania.]

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 legisla- tion, to carry the provisions of this law into effect. If not, why im- pose 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 deem- ing 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 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 define 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 vo- luntary. Claimants may resort to it for aid, or pursue the direc- tions of the act of Congress. If its provisions are onerous, discard them. Take shelter under the national law. But it is an addi- tional remedy provided for the benefit of the slaveholders. 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 adop- 9 f 2

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[Prigg v. The Commonwealth of Pennsylvania.]

tion ? In determining which remedy to invoke, the slave owner will be governed by circumstances ; distance, place, character of neighbourhood, clearness of his own proof, &c, &c, and will act accordingly to the preponderance of advantages. Not one particle of inconvenience can he suffer under this act of Pennsyl- vania, while he has the chance of manifold benefits.

The acts of Congress and of Pennsylvania form together a harmonious system, neither jarring nor conflicting in any part of its operation. It is careful of the rights of the slaveholder, and is adapted to the feelings, sympathies, and sovereign power of the states. If the power to pass laws on the subject of de- livering up fugitive slaves be concurrent, the states cannot control the acts of Congress, and cannot therefore impair the right 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 slaveholders may bid defiance to hostile state legislation. The mode of recapturing or seizing their property by the south- ern slaveholders, 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 construc- tion, 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 slaveholders, 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 unac- countable delusions that ever seized the human mind. He would leave to future times, as a matter of wonder, the task of discover- ing 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

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[Prigg v. The Commonwealth of Pennsylvania.]

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 ex- pressly 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 re- pugnancy 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 legis- lation, it is not to be admitted that a mere grant of such powers in affirmative terms to Congress, does, per se, transfer an ex- clusive sovereignty on such subjects to the latter. On the con- trary, 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 unquestion- able that the states retain concurrent authority with Congress not only on the letter and spirit of the eleventh amendment of the Con- stitution, but upon the soundest principles of general reasoning."

3. 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

68 SUPREME COURT.

[Prigg t\ The Commonwealth of Pennsylvania.]

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, pre- scribed that fugitive slaves were to be " delivered up" " on claim." Both the acts of Congress and of 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, of 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 1S26, the magistrate may issue his warrant to apprehend the fugitive ; but the judge alone can grant the certi- ficate. 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 con- trary, 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 slaveholder ; but is silent as to the rights of ne- groes 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 pro- tection. 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-pro- tection, 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

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69

[Prigg v. The Commonwealth of Pennsylvania.]

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 stat^ 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 any thing 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 govern- ment. 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 deli- cate ; 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 de- pends on their policy or justice, leave that to the judgment of the people who enact and must obey them. Dismissing from considera- tion, 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 con- flict. 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

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[Prigg v. The Commonwealth of Pennsylvania.]

much to foment 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 indig- nation and abhorrence. It is against such offenders that the penal enactment in question is chiefly aimed. Can it be possi- ble that this Court will strike down the arm of state authority, thus uplifted to maintain peace, order, and the respectful obser- vance 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 Constitu- tion 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 Constitu-

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71

[Prigg v. The Commonwealth of Pennsylvania.]

tion, 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 learn- ing and experience of your honours. 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 con- tended, 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 rights ; 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 ; arrogate 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 pursuers, 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

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[Prigg v. The Commonwealth of Pennsylvania.]

dissolved. I do not say this in menace — God forbid I should ; hut 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 dif- ferent sections of our Union, render government here a task of no small caution, forbearance, and responsibility. Time and expe- rience 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 particu- lar 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-con- fidence and of self-interest, and admonish us, that, in the end, that construction is the only sound, rational, and safe one, which en- croaches 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 con- test 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

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73

[Prigg v. The Commonwealth of Pennsylvania.]

its inestimable importance. The most skeptical must trace the finger of God in this work; and acknowledge that he has sancti- fied 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 che- rishing 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 swaddling clothes of our national infancy ; it is the coat of mail that envelopes the giant-limbs 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 forever 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 with- held— 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 deci- sion may be pronounced; and deeply and anxiously as she desires to see all the rights guarantied to her by the national Constitu- tion steadfastly maintained, she submits, with a confidence that knows no fear, these rights, which are equally dear to every 10 G

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[Prigg v. The Commonwealth of Pennsylvania.]

sister state as they are to her, to the judgment of this high and enlightened tribunal.

Mr. Justice Story delivered the opinion of the Court.

This is a writ of error to the Supreme Court of Pennsylvania, brought under the 25th section of the judiciary act of 17S9, ch. 20, for the purpose of revising the judgment of that Court, in a case involving the construction of the Constitution and laws of the United States.

The facts are briefly these : The plaintiff in error was indicted in the Court of Oyer and Terminer for York county, for having, with force and violence, taken and carried away from that county to the state of Maryland, a certain negro woman, named Marga- ret Morgan, with a design and intention of selling and disposing of, and keeping her as a slave or servant for life, contrary to a statute of Pennsylvania, passed on the 26th of March, 1S26. That statute in the first section, in substance, provides, that if any per- son or persons shall from and after the passing of the act, by force and violence take and carry away, or cause to be taken and carried away, and shall by fraud or false pretence, seduce, or cause to be seduced, or shall attempt to take, carry away, or se- duce any negro or mulatto from any part of that commonwealth, with a design and intention of selling and disposing of, or causing to be sold, or of keeping and detaining, or of causing to be kept and detained, such negro or mulatto as a slave or servant for life, or for any term whatsoever; every such person or persons, his or their aiders or abettors, shall, on conviction thereof, be deemed guilty of a felony, and shall forfeit and pay a sum not less than five hundred, nor more than one thousand dollars; and moreover, shall be sentenced to undergo a servitude for any term or terms of years, not less than seven years nor exceeding twenty-one years ; and shall be confined and kept to hard labour, &c. There are many other provisions in the statute which is recited at large in the record, but to which it is in our view unnecessary to ad- vert upon the present occasion.

The plaintiff in error pleaded not guilty to the indictment; and at the trial the jury found a special verdict, which, in substance, states, that the negro woman, Margaret Morgan, was a slave for life, and held to labour and service under and according to the

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laws of Maryland, to a certain Margaret Ashmore, a citizen of Maryland ; that the slave escaped and fled from Maryland into Pennsylvania in 1832; that the plaintiff in error, being legally constituted the agent and attorney of the said Margaret Ashmore, in 1837, caused the said negro woman to be taken and appre- hended as a fugitive from labour by a state constable, under a warrant from a Pennsylvania magistrate ; that the said negro woman was thereupon brought before the said magistrate, who refused to take further cognisance of the case ; and thereupon the plaintiff in error did remove, take, and carry away the said negro woman and her children out of Pennsylvania into Maryland, and did deliver the said negro woman and her children into the cus- tody and possession of the said Margaret Ashmore. The special verdict further finds, that one of the children was born in Penn- sylvania, more than a year after the said negro woman had fled and escaped from Maryland.

Upon this special verdict, the Court of Oyer and Terminer of York county, adjudged that the plaintiff in error was guilty of the offence charged in the indictment. A writ of error was brought from that judgment to the Supreme Court of Pennsylvania, where the judgment was, pro forma, affirmed. From this latter judg- ment, the present writ of error has been brought to this Court.

Before proceeding to discuss the very important and interesting questions involved in this record, it is fit to say, that the cause has been conducted in the Court below, and has been brought here by the co-operation and sanction, both of the state of Mary- land, and the state of Pennsylvania, in the most friendly and courteous spirit, with a view to have those questions finally dis- posed of by the adjudication of this Court ; so that the agitations on this subject in both states, which have had a tendency to inter- rupt the harmony between them, may subside, and the conflict of opinion be put at rest. It should also be added, that the statute of Pennsylvania of 1826, was (as has been suggested at the bar) passed with a view of meeting the supposed1 wishes of Maryland on the subject of fugitive slaves; and that, although it has failed to produce the good effects intended in its practical construction, the result was unforeseen and undesigned.

1. The question arising in the case, as to the constitutionality of the statute of Pennsylvania, has been most elaborately argued at

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the bar. The counsel for the plaintiff in error have contended that the statute of Pennsylvania is unconstitutional ; first, because Congress has the exclusive power of legislation upon the subject- matter under the Constitution of the United States, and under the act of the 12th of February, 1793, ch. 51, (7), which was passed in pursuance thereof; secondly, that if this power is not exclusive in Congress, still the concurrent power of the state legislatures is suspended by the actual exercise of the power by Congress ; and thirdly, that if not suspended, still the statute of Pennsyl- vania, in all its provisions applicable to this case, is in direct collision with the act of Congress, and therefore is unconstitu- tional and void. The counsel for Pennsylvania maintain the negative of all these points.

Few questions which have ever come before this Court in- volve more delicate and important considerations; and few upon which the public at large may be presumed to feel a more pro- found and pervading interest. We have accordingly given them our most deliberate examination ; and it has become my duty to state the result to which we have arrived, and the reasoning by which it is supported.

Before, however, we proceed to the points more immediately before us, it may be well — in order to clear the case of difficulty — to say, that in the exposition of this part of the Constitution, we shall limit ourselves to those considerations which appropriately and exclusively belong to it, without laying down any rules of interpretation of a more general nature. It will, indeed, pro- bably, be found, when we look to the character of the Constitu- tion itself, the objects which it seeks to attain, the powers which it confers, the duties which it enjoins, and the rights which it secures, as well as the known historical fact that many of its provisions were matters of compromise of opposing interests and opinions; that no uniform rule of interpretation can be applied to it which may not allow, even if it does not positively demand, many modifications in its actual application to particular clauses. And, perhaps, the safest rule of interpretation after all will be found to be to look to the nature and objects of the particular powers, duties, and rights, with all the lights and aids of contem- porary history ; and to give to the words of each just such opera-

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tion and force, consistent with their legitimate meaning, as may fairly secure and attain the ends proposed.

There are two clauses in the Constitution upon the subject of fugitives, which stand in juxtaposition with each other, and have been thought mutually to illustrate each other. They are both contained in the second section of the fourth article, and are in the following words : "A" person charged in any state with treason, felony, or 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 fled, be delivered up, to be removed to the state having jurisdiction of the crime."

"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 last clause is that, the true interpretation whereof is directly in judgment before us. Historically, it is well known, that the object of this clause was to secure to the citizens of the slavehold- ing states the complete right and title of ownership in their slaves, as property, in every state in the Union into which they might escape from the state where they were held in servitude. The full recognition of this right and title was indispensable to the security of this species of property in all the slaveholding states; and, indeed, was so vital to the preservation of their domestic interests and institutions, that it cannot be doubted that it consti- tuted a fundamental article, without the adoption of which the Union could not have been formed. Its true design was to guard against the doctrines and principles prevalent in the non-siave- holding states, by preventing them from intermeddling with, or obstructing, or abolishing the rights of the owners of slaves.

By the general law of nations, no nation is bound to recognise the state of slavery, as to foreign slaves found within its terri- torial dominions, when it is in opposition to its own policy and institutions, in favour of the subjects of other nations where slavery is recognised. If it does it, it is as a matter of comity, and not as a matter of international right. The state of slavery is deemed to be a mere municipal regulation, founded upon and limited to the range of the territorial laws. This was fully recognised in Somerset's

g 2

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[Prigg v. The Commonwealth of Pennsylvania.]

Case, Lofft's Rep. 1 ; S. C, 11 State Trials by Harg. 340 ; S. C, 20 Howell's State Trials, 79 ; 'which was decided before the Ame- rican revolution. It is manifest from this consideration, that if the Constitution had not contained this clause, every non-slave- holding state in the Union would have been at liberty to have declared free all runaway slaves coming within its limits, and to have given them entire immunity and protection against the claims of their masters ; a course which would have created the most bitter animosities, and engendered perpetual strife between the different states. The clause was, therefore, of the last import- ance to the safety and security of the southern states ; and could not have been surrendered by them without endangering their whole property in slaves. The clause was accordingly adopted into the Constitution by the unanimous consent of the framers of it ; a proof at once of its intrinsic and practical necessity.

How, then, are we to interpret the language of the clause ? The true answer is, in such a manner, as, consistently with the words, shall fully and completely effectuate the whole objects of it. If by one mode of interpretation the right must become shadowy and unsubstantial, and without any remedial power adequate to the end ; and by another mode it will attain its just end and secure its manifest purpose ; it would seem, upon principles of reasoning, absolutely irresistible, that the latter ought to prevail. No Court of justice can be authorized so to construe any clause of the Constitution as to defeat its obvious ends, when another construction, equally accordant with the words and sense thereof, will enforce and protect them.

The clause manifestly contemplates the existence of a positive, unqualified right on the part of the owner of the slave, which no state law or regulation can in any way qualify, regulate, control, or restrain. The slave is not to be discharged from service or labour, in consequence of any state law or regulation. Now, certainly, without indulging in any nicety of criticism upon words, it may fairly and reasonably be said, that any state law or state regulation, which interrupts, limits, delays, or postpones the right of the owner to the immediate possession of the slave, and the immediate command of his service and labour, operates, pro tanto, a discharge of the slave therefrom. The question can never be, how much the slave is discharged from ; but whether he is

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discharged from any, by the natural or necessary operation of state laws or state regulations. The question is not one of quan- tity or degree, but of withholding, or controlling the incidents of a positive and absolute right.

We have said that the clause contains a positive and unquali- fied recognition of the right of the owner in the slave, unaffected by any state law or regulation whatsoever, because there is no qualification or restriction of it to be found therein ; and we have no right to insert any which is .not expressed, and cannot be fairly implied ; especially are we estopped from so doing, when the clause puts the right to the service or labour upon the same ground and to the same extent in every other state as in the state from which the slave escaped, and in which he was held to the service or labour. If this be so, then all the incidents to that right attach also ; the owner must, therefore, have the right to seize and repossess the slave, which the local laws of his own state confer upon him as property ; and we all know that this right of seizure and recaption is universally acknowledged in all the slaveholding states. Indeed, this is no more than a mere affirmance of the principles of the common law applicable to this very subject. Mr. Justice Blackstone (3 Bl. Comm. 4) lays it down as unquestionable doctrine. " Recaption or reprisal (says he) is another species of remedy by the mere act of the party injured. This happens when any one hath deprived another of his property in goods or chattels personal, or wrongfully detains one's wife, child, or servant; in which case the owner of tin; goods, and the husband, parent, or master may lawfully claim and retake them, wherever he happens to find them, so it be not in a riotous manner, or attended with a breach of the peace." Upon this ground we have not the slightest hesitation in holding, that, under and in virtue of the Constitution, the owner of a slave is clothed with entire authority, in every state in the Union, to seize and recapture his slave, whenever he can do it without any breach of the peace, or any illegal violence.' In this sense, and to this extent this clause of the Constitution may properly be said to execute itself ; and to require no aid from legislation, state or national.

But the clause of the Constitution does not stop here ; nor, in- deed, consistently with its professed objects, could it do bo. Many

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[Prigg r. The Commonwealth of Pennsylvania.]

cases must arise in which, if the remedy of the owner were con- fined to the mere right of seizure and recaption, he would be utterly without any adequate redress. He may not be able to lay his hands upon the slave. He may not be able to enforce his rights against persons who either secrete or conceal, or withhold the slave. He may be restricted by local legislation as to the mode of proofs of his ownership ; as to the Courts in which he shall sue, and as to the actions which he may bring ; or the pro- cess he may use to compel the delivery of the slave. Nay, the local legislation may be utterly inadequate to furnish the appro- priate redress, by authorizing no process in rem, or no specific mode of repossessing the slave, leaving the owner, at best, not that right which the Constitution designed to secure — a specific delivery and repossession of the slave, but a mere remedy in damages ; and that perhaps against persons utterly insolvent or wortliless. The state legislation may be entirely silent on the whole subject, and its ordinary remedial process framed with dif- ferent views and objects ; and this may be innocently as well as designedly done, since every state is perfectly competent, and has the exclusive right to prescribe the remedies in its own judicial tribunals, to limit the time as well as the mode of redress, and to deny jurisdiction over cases, which its own policy and its own institutions either prohibit or discountenance.

If, therefore, the clause of the Constitution had stopped at the mere recognition of the right, without providing or contemplating any means by which it might be established and enforced in cases where it did not execute itself, it is plain that it would have, in a great variety of cases, a delusive and empty annunciation. If it did not contemplate any action either through state or national legislation, as auxiliaries to its more perfect enforcement in the form of remedy, or of protection, then, as there would be no duty on either to aid the right, it would be left to the mere comity of the states to act as they should please ; and would depend for its security upon the changing course of public opinion, the muta- tions of public policy, and the general adaptations of remedies for purposes strictly according to the lex fori.

And this leads us to the consideration of the other part of the clause, which implies at once a guaranty and duty. It says, " But he (the slave) shall be delivered up on claim of the party to

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whom such service or labour may be due.5' Now, we think it exceedingly difficult, if not impracticable, to read this language and not to feel that it contemplated some farther remedial re- dress than that which might be administered at the hands of the owner himself. A claim is to be made. What is a claim ? It is, in a just juridical sense, a demand of some matter as of right made by one person upon another, to do or to forbear to do some act or thing as a matter of duty. A more limited, but at the same time an equally expressive definition was given by Lord Dyer, as cited in Stowell v. Zouch, Plowden, 359 ; and it is equally applica- ble to the present case : that " a claim is a challenge by a man of the propriety or ownership of a thing, which he has not in posses- sion, but which is wrongfully detained from him." The slave is to be delivered up on the claim. By whom to be delivered up ? In what mode to be delivered up ? How, if a refusal takes place, is the right of delivery to be enforced ? Upon what proofs ? What shall be the evidence of a rightful recaption or delivery ? When and under what circumstances shall the possession of the owner, after it is obtained, be conclusive of his right, so as to preclude any further inquiry or examination into it by local tri- bunals or otherwise, while the slave, in possession of the owner, is in transitu to the state from which he fled ?

These, and many other questions, will readily occur upon the slightest attention to the clause ; and it is obvious that they can receive but one satisfactory answer. They require the aid of legislation to protect the right, to enforce the delivery, and to secure the subsequent possession of the slave. If, indeed, the Constitution guarantees the right, and if it requires the delivery upon the claim of the owner, (as cannot well be doubted.) the natural inference certainly is, that the national government is clothed with the appropriate authority and functions to enforce it. The fundamental principle applicable to all cases of this sort, would seem to be, that where the end is required, the means are given ; and where the duty is enjoined, the ability to perform it is contemplated to exist on the part of the functionaries to whom it is entrusted. The clause is found in the national Constitution, and not in that of any state. It does not point out any state func- tionaries, or any state action to carry its provisions into effect. The states cannot, therefore, be compelled to enforce them ; and 11

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it might well be deemed an unconstitutional exercise of the power of interpretation, to insist that the states are bound to provide means to carry into effect the duties of the national government, nowhere delegated or intrusted to them by the Constitution. On the contrary, the natural, if not the necessary conclusion is, that the national government, in the absence of all positive provisions to the contrary, is bound, through its own proper departments, legislative, judicial, or executive, as the case may require, to carry into effect all the rights and duties imposed upon it by the Con- stitution. The remark of Mr. Madison, in the Federalist, (No. 43,) would seem in such cases to apply with peculiar force. " A right (says he) implies a remedy ; and where else would the remedy be deposited, than where it is deposited by the Constitution ?" meaning, as the context shows, in the government of the United States.

It is plain, then, that where a claim is made by the owner, out of possession, for the delivery of a slave, it must be made, if at all, against some other person ; and inasmuch as the right is a right of property capable of being recognised and asserted by proceedings before a Court of justice, between parties adverse to each other, it constitutes, in the strictest sense, a controversy be- tween the parties, and a case " arising under the Constitution" of the United States ; within the express delegation of judicial power given by that instrument. Congress, then, may call that power into activity for the very purpose of giving effect to that right ; and if so, then it may prescribe the mode and extent in which it shall be applied, and how, and under what circumstances the pro- ceedings shall afford a complete protection and guaranty to the right.

Congress has taken this very view of the power and duty of the national government. As early as the year 1791, the attention of Congress was drawn to it, (as we shall hereafter more fully see,) in consequence of some practical difficulties arising under the other clause, respecting fugitives from justice escaping into other states. The result of their deliberations, was the passage of the act of the 12th of February, 1793, ch. 51, (7,) which, after having, in the first and second sections, provided for the case of fugitives from justice by a demand to be made of the delivery through the executive authority of the state where they are found,

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[Prigg v. The Commonwealth of Pennsylvania.]

proceeds, in the third section, to provide, that when a person held to labour or service in any of the United States, shall escape into any other of the states or territories, the person to whom such labour or service may be due, his agent or attorney, is hereby em- powered to seize or arrest such fugitive from labour, and 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 evidence 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 or her, it shall be 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 the said fugitive from labour, to the state or territory from which he or she fled. The fourth section provides a penalty against any person who shall knowingly and willingly obstruct or hinder such claimant, his agent, or attorney, in so seizing or arresting such fugitive from labour, or rescue such fugitive from the claimant, or his agent, or attorney when so arrested, or who shall harbour or conceal such fugitive after notice that he is such ; and it also saves to the person claiming such labour or service, his right of action for or on account of such injuries.

In a general sense, this act may be truly said to cover the whole ground of the Constitution, both as to fugitives from justice, and fugitive slaves ; that is, it covers both the subjects, in its enact- ments; not because it exhausts the remedies which may be ap- plied by Congress to enforce the rights, if the provisions of the act shall in practice be found not to attain the object of the Con- stitution ; but because it points out fully all the modes of attain- ing those objects, which Congress, in their discretion, have as yet deemed expedient or proper to meet the exigencies of the Consti- tution. If this be so, then it would seem, upon just principles of construction, that the legislation of Congress, if constitutional, must supersede all state legislation upon the same subject ; and by necessary implication prohibit it. For if Congress have a consti- tutional power to regulate a particular subject, and they do actu- ally regulate it in a given manner, and in a certain form, it cannot

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[Prigg v. The Commonwealth of Pennsylvania.]

be that the state legislatures have a right to interfere ; and, as it were, by way of complement to the legislation of Congress, to prescribe additional regulations, and what they may deem auxi- liary provisions for the same purpose. In such a case, the legis- lation of Congress, in what it does prescribe, manifestly indicates that it does not intend that there shall be any farther legislation to act upon the subject-matter. Its silence as to what it does not do, is as expressive of what its intention is as the direct provisions made by it. This doctrine was fully recognised by this Court, in the case of Houston v. Moore, 5 Wheat. Rep. 1, 21, 22 ; where it was expressly held, that where Congress have exercised a power over a particular subject given them by the Constitution, it is not competent for state legislation to add to the provisions of Congress upon that subject ; for that the will of Congress upon the whole subject is as clearly established by what it had not declared, as by what it has expressed.

But it has been argued, that the act of Congress is unconstitu- tional, because it does not fall within the scope of any of the enu- merated powers of legislation confided to that body ; and therefore it is void. Stripped of its artificial and technical structure, the argument comes to this, that although rights are exclusively se- cured by, or duties are exclusively imposed upon the national government, yet, unless the power to enforce these rights, or to execute these duties can be found among the express powers of legislation enumerated in the Constitution, they remain without any means of giving them effect by any act of Congress; and they must operate solely proprio vigore, however defective may be their operation ; nay, even although, in a practical sense, they may be- come a nullity from the want of a proper remedy to enforce them, or to provide against their violation. If this be the true interpre- tation of the Constitution, it must, in a great measure, fail to attain many of its avowed and positive objects as a security of rights, and a recognition of duties. Such a limited construction of the Constitution has never yet been adopted as correct, either in theory or practice. No one has ever supposed that Congress could, constitutionally, by its legislation, exercise powers, or enact laws beyond the powers delegated to it by the Constitution; but it has, on various occasions, exercised powers which were neces- sary and proper as means to carry into effect rights expressly

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[Prigg v. The Commonwealth of Pennsylvania.]

given, and duties expressly enjoined thereby. The end being required, it has been deemed a just and neeessary implication, that the means to accomplish it are given also ; or, in other words, that the power flows as a necessary means to accomplish the end.

Thus, for example, although the Constitution has declared that representatives shall be apportioned among the states according to their respective federal numbers ; and, for this purpose, it has expressly authorized Congress, by law, to provide for an enumera- tion of the population every ten years ; yet the power to appor- tion representatives after this enumeration is made, is nowhere found among the express powers given to Congress, but it has always been acted upon as irresistibly flowing from the duty positively enjoined by the Constitution. Treaties made between the United States and foreign powers, often contain special pro- visions, which do not execute themselves, but require the interpo- sition of Congress to carry them into effect, and Congress has constantly, in such cases, legislated on the subject ; yet, although the power is given to the executive, with the consent of the senate, to make treaties, the power is nowhere in positive terms conferred upon Congress to make laws to carry the stipulations of treaties into effect. It has been supposed to result from the duty of the national government to fulfil all the obligations of treaties. The senators and representatives in Congress are, iu all cases, except treason, felony, and breach of the peace, ex- empted from arrest during their attendance at the sessions there- of, and in going to and returning from the same. May not Con- gress enforce this right by authorizing a writ of habeas corpus, to free them from an illegal arrest in violation of this clause of the Constitution? If it may not, then the specific remedy to enforce it must exclusively depend upon the local legislation of the states; and may be granted or refused according to their own varying policy, or pleasure. The Constitution also declares that the pri- vilege of the writ of habeas corpus shall not be suspended, unless, when in cases of rebellion or invasion, the public safety may re- quire it. No express power is given to Congress to secure this invaluable right in the non-enumerated cases, or to suspend the writ in cases of rebellion or invasion. And yet it would be dif- ficult to say, since this great writ of liberty is usually provided for by the ordinary functions of legislation, and can be effectually

II

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[Prigg 0. The Commonwealth of Pennsylvania.]

provided for only in this way, that it ought not to be deemed by necessary implication within the scope of the legislative power of Congress.

These cases are put merely by way of illustration, to show that the rule of interpretation, insisted upon at the argument, is quite too narrow to provide for the ordinary exigencies of the national government, in cases where rights are intended to be absolutely secured, and duties are positively enjoined by the Constitution.

The very act of 1793, now under consideration, affords the most conclusive proof that Congress has acted upon a very dif- ferent rule of interpretation, and has supposed that the right as well as the duty of legislation on the subject of fugitives from justice, and fugitive slaves was within the scope of the constitutional authority conferred on the national legislature. In respect to fugitives from justice, the Constitution, although it expressly pro- vides that the demand shall be made by the executive authority of the state from which the fugitive has fled, is silent as to the party upon whom the demand is to be made, and as to the mode in which it shall be made. This very silence occasioned embar- rasments in enforcing the right and duty at an early period after the adoption of the Constitution ; and produced a hesitation on the part of the executive authority of Virginia to deliver up a fugi- tive from justice, upon the demand of the executive of Pennsyl- vania, in the year 1791 ; and as we historically know from the message of President Washington and the public documents of that period, it was the immediate cause of the passing of the act of 1793, which designated the person (the state executive) upon whom the demand should be made, and the mode and proofs upon and in which it should be made. From that time down to the present hour, not a doubt has been breathed upon the consti- tutionality of this part of the act; and every executive in the Union has constantly acted upon and admitted its validity. Yet the right and the duty are dependent, as to their mode of execution, solely on the act of Congress ; and but for that, they would remain a nominal right and passive duty; the execution of which being intrusted to and required of no one in particular, all persons might be at liberty to disregard it. This very acquies- cence, under such circumstances, of the highest state functionaries, is a most decisive proof of the universality of the opinion that the

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[Prigg v. The Commonwealth of Pennsylvania.]

act is founded in a just construction of the Constitution; inde- pendent of the vast influence which it ought to have as a con- temporaneous exposition of the provisions, by those who were its immediate framers, or intimately connected with its adoption.

The same uniformity of acquiescence in the validity of the act of 1793, upon the other part of the subject-matter, that of fugitive slaves, has prevailed throughout the whole Union until a comparatively recent period. Najr; being from its nature and character more readily susceptible of being brought into contro- versy, in Courts of justice, than the former, and of enlisting in opposition to it the feelings, and it may be the prejudices of some portions of the non-slaveholding states; it has naturally been brought under adjudication in several states in the Union, and particularly in Massachusetts, New York, and Pennsylvania, and on all these occasions its validity has been alarmed. The cases cited at the bar, of Wright v. Deacon, 5 Serg. and Rawle, 62 ; Glen v. Hodges, 9 Johns. Rep. 67 ; Jack v. Martin, 12 Wend. Rep. 311 ; S. C, 12 Wend. Rep. 507 ; and Com. v. Griffin, 2 Pick. Rep. 11; are directly in point. So far as the judges of the Courts of the United States have been called upon to enforce it, and to grant the certificate required by it, it is believed that it has been uniformly recognised as a binding and valid law ; and as imposing a constitutional duty. Under such circumstances, if the question were one of doubtful construction, such long ac- quiescence in it, such contemporaneous expositions of it, and such extensive and uniform recognition of its validity, would in our judgment entitle the question to be considered at rest; unless indeed the interpretation of the Constitution is to be delivered over to interminable doubt throughout the whole progress of legislation, and of national operations. Congress, the executive, and the judiciary have, upon various occasions, acted upon this as a sound and reasonable doctrine. Especially did this Court in the cases of Stuart v. Laird, 1 Cranch Rep. 299; and Martin v. Hunter, 1 Wheat. Rep. 304 ; and in Cohen v. The Common- wealth of Virginia, 6 Wheat. Rep. 264; rely upon contempora- neous expositions of the Constitution, and long acquiescence in it, with great confidence, in the discussion of questions of a highly interesting and important nature.

But we do not wish to rest our present opinion upon the ground

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[Prigg t*. The Commonwealth of Pennsylvania.]

either of contemporaneous exposition, or